Democracy Needs A Reboot

Five Bold Steps to Bring Our Democracy into the 21st Century
by Jerry Kloby

The Trump Administration routinely pushed the boundaries of executive power and took a wrecking ball to constitutional checks and balances. It refused to comply with congressional subpoenas during impeachment hearings, it proceeded with policies even though the courts had ruled them unconstitutional (e.g., ending DACA), it had made open threats to shut down news media, sent armed federal agents into numerous American cities over the opposition of governors and mayors, openly discussed postponing the presidential election, solicited foreign help from at least three nations in an effort to win the 2020 election, fired inspectors general who were doing their duty to root out corruption and incompetence, lied to the public on a daily basis, failed in its constitutional duty to “promote the general welfare” by severely mishandling the coronavirus response in terms of both public health policy and economic policy, and inspired a violent insurrection at the Capitol on January 6.

But the Trump Administration was not the sole problem. The American political system has numerous anti-democratic features built into it and the Republican Party has been able to use them to capture greater power without majority support. For years Republicans had focused on winning seats in state legislatures. They then used state legislative power to redraw congressional district boundaries to make it easier for them to win congressional elections. They passed stricter voter ID laws (developed by ALEC, the American Legislative Exchange Council) designed to suppress the vote among likely Democratic voters. Republicans also harnessed resources to win elections in numerous lower-population states to give themselves greater power in the U.S. Senate.

Key institutions of the American democratic system were shaped by the power of slaveholding states; and though slavery was abolished over 150 years ago, the system retains many features that give disproportionate power to conservative elites whose ideology and culture is rooted in white supremacy and oligarchy.

We should not just exhale a sigh of relief that Trump is out of office. We need to rebuild institutional checks and balances and strengthen mechanisms of accountability. We also need to reevaluate the voting system that got us in such a deep hole in the first place. Yes, we should have automatic voter registration. Yes, election day should be a holiday. Yes, we need to remove the influence of big money from politics. And yes, we need to reduce spending on systems of repression and devote resources to those things that liberate people from want and despair, that help us reach our potential as individuals and as a society.

A political revolution is not just a change in personnel, it means structural changes that weaken the plutocracy.

Here we look at five structural changes that could reduce the power of plutocrats and the far right, and help our democracy breath. There are certainly other steps that would help but we will limit ourselves to these five, hoping to get them more into the conversation about what is possible and what is necessary. As Karl Marx once said, “the tradition of all the dead generations weighs like a nightmare on the brain of the living.” Sometimes traditions need to be torn down like confederate monuments. After all, our founding fathers were only tentatively committed to true democracy. Thomas Jefferson didn’t really mean “all men are created equal” when he wrote those words into the Declaration of Independence. But we can be pretty certain that John Jay, the nation’s first chief justice of the Supreme Court did mean it when he declared that “the people who own the country ought to govern it” and Alexander Hamilton was quite sincere when he said that “the rich and well-born” ought to have superior power. Nearly half of the fifty-five delegates at the Constitutional Convention desired some sort of monarchy and they pretty much all agreed that women, blacks, and native Americans shouldn’t be permitted to vote.[1] Even if you were a white male you couldn’t vote, or hold office, unless you owned a sufficient amount of property (just how much, varied from state to state). This is the kind of thinking that saddled us with the Electoral College and some other very undemocratic structures and policies.

Automatic voter registration, making election day a holiday, better candidates, ranked choice voting, restrictions on political donations (aka bribes), restoring voting rights to convicted felons, are all good and necessary steps but they leave too many fundamentally undemocratic features intact.

Abolish Congressional Districts.
To start, there is the problem of gerrymandering. After each Census, congressional districts are redrawn to reflect the distribution of the population. The U.S. constitution relegates responsibility for this to each of the states. Historically, state legislatures have done this task and many times they drew district lines to favor one party over another (or to favor a racial group or social class) and help ensure incumbent victory in the next election. Today 35 states do it this way, and seven 7 have putatively independent commissions do the job. If we are to have congressional districts then the independent commission seems like the way to go. Ideally, drawing up district boundaries should be insulated from politics as much as possible. But there is another option that should be considered: do away with congressional districts all together.

Gerrymandering is a serious problem that undermines democracy and there is no simple way to draw district boundaries in a fair manner. Instead, states could choose representatives through a proportional system. For example, let’s say a state has 20 reps; on election day people vote for a party to represent them. If one party gets 55 percent of the vote, they get 11 seats (55 percent). If the second major party gets 40 percent of the votes, they get 8 seats (40 percent). If a third party get 5 percent of the vote, it gets one seat. Versions of this proposal have been put forth by FairVote and on Vox.

Such a system doesn’t insure that sparsely populated areas of a state, perhaps with a different economic base, will have its interests represented in the state legislature but neither does the system as it exists now. And the problems that gerrymandering have created far outweigh any fairness that it pretends to bestow.

Statehood for DC and Puerto Rico
Washington DC has no representation in Congress. If it were a state it would be represented by two senators and one congressperson in the House. Puerto Rico, whose residents are American citizens, would have five members in the House.

If the Electoral College were adjusted due to statehood for Puerto Rico, Puerto Rico would have seven electoral votes. DC already has three electoral votes despite not having any voting representation in Congress. Some legal scholars have proposed creating many more states. A January, 2020, article in the Harvard Law Review (“Pack the Union”) proposed such a method as a way of making government fairer and more democratic. The authors point out that adding new states requires a simple Congressional majority, which is more easily attainable than amending the Constitution.

Adding more states would likely be welcomed by residents of most U.S. territories (including Puerto Rico) since most of them are already U.S. citizens, although they cannot vote for president and have no voting representation in the House or the Senate. Consequently, they are eligible only for limited benefits compared to what other U.S. citizens get. In a fair and democratic system, these 8 million or so citizens would have proportionate voting representation in Congress.

Republicans figured out long ago that it would be a lot easier for them to win an election in a low-population state such as Wyoming than in a high-population one. They also put a lot more effort into winning seats in state legislatures and dominating committees that draw up congressional district boundaries. It’s made them harder to beat. During President Obama’s eight years in office, Democrats suffered a net loss of 968 state legislative seats, which gave Republicans a strong upper hand in drawing district boundaries to their advantage.

The impact of gerrymandering is significant. An analysis by the Brookings Institute determined that for elections to the House in 2016 the difference in votes for Democrats vs. Republicans was just 1.2 percent. But the difference in the number of seats allotted was 10.8 percent, giving a total of 21 extra seats to Republicans.

Some have called for increasing the number of representatives in the House. We’ve had 435 since 1913, even though the population has more than tripled since then. This proposal has gained support with favorable editorials by the NY Times as well as positive coverage by PEW Research and VOX. But there are plenty of millionaires who could fill those additional seats. Expanding the House is not likely to change much without serious campaign finance reform.

Abolish the Electoral College
“Can we forget for whom we are forming a government? Is it for men, or for the imaginary beings called states?” — James Wilson, Pennsylvanian delegate to the Constitutional Convention.

In 2016 and 2000 the Electoral College system gave the presidency to the candidate who received fewer votes. It almost happened again in 2020. The EC is simply an archaic institution that undermines democracy.

The EC gives much greater weight to the less populated states thereby undermining the principle of one person one vote. It discourages high voter turnout and it encourages political debate oriented to the concerns of “battleground states” instead of issues of greater national concern. It is also a relic of slavery.

The EC was established to give slave-holding states disproportionate power. The Constitution established that slaves should be counted as 3/5 of a person for the purposes of representation in Congress and state delegates to the EC. Blacks in slave holding states were not permitted to vote but their numbers were counted in order to give the slaveholding class greater voting power in Congress and the EC. The 3/5 compromise gave slave holding states one-third more representation in Congress and the Electoral College than they would have had otherwise. It was terribly ironic. The more slaves in a given state the greater the power slaveholders had in the federal government to maintain the existence of slavery.

Some argue that the Electoral College was necessary to make sure that the interests of sparsely-populated agrarian states were not trampled by highly-populated states whose interests lie more with commerce and industry. But in the modern U.S. the EC gives vastly disproportionate power to the least populated states with some states overrepresented by a factor of 3. In the early years of the republic, the differences in population among the states was relatively small. There were fewer than 4 million people living in the United States when the Constitution was ratified. Today, the EC creates a mockery of democracy since we have some states with 30 or 40 million people and others with a few hundred thousand. Some states have one Electoral College vote for every 200,000 residents, others have one for every 700,000.

The winner-take-all system of electing delegates (in place in 48 states) can also discourage voter turnout since winning a state by a small margin gets a candidate the same number of delegates as if he or she had won by a large margin. If polls are showing that candidate A is 10 or 15 points ahead of candidate B, voters may feel less compelled to make the effort to vote. Likewise, candidates and their parties are less likely to spend money or spend time visiting states in which they have a large lead. Thus, a lot of campaigning is done in the more hotly contested states (so-called “battleground” states) and other states are neglected. The issues may be different in the battleground states, too, affecting the whole tone of the campaign.

In 2020, Joe Biden won the popular vote by more than 7 million votes. His Electoral College edge was 306 to 232. The victory might have taken some of the pressure off the movement to abolish the EC but the outcome was only about 43,000 votes from becoming a tie. It’s frightening to think how much an Electoral College tie would have added to the political tensions that contributed to the violent insurrection attempt at the Capitol building on January 6, 2021.

The popular vote was very close in several states. The three closest were Arizona, Georgia, and Wisconsin. Biden won those three states by a margin of just 42,918. In other words, it would have taken less than 43,000 votes for Trump to win the combined 37 Electoral College votes, throwing the EC into a 269 to 269 tie. A shift in Nevada of just 33,597 votes would have meant an outright EC victory for Donald Trump, nullifying Biden’s nearly 7 million vote lead in the popular vote.

The other issue that was brought to light was the many inflection points that the Electoral College system creates that adds potential for challenges. One is simply the amount of time between the election and the January 20th inauguration date. The sitting president has a lot of time to construct a fiction about the election’s validity, present legal challenges, organize an auto golpe, or to issue executive orders and pardons that violate the popular will. After election day, each state has to certify their respective delegates to the EC and their votes. In most cases, this is done by the state legislatures and it presents an opportunity to undermine the process. Likewise, the reading of the EC votes by the vice president, which took place on January 6, opened the possibility that the VP would select “alternative slates” of delegates. It gave congressional representatives an opportunity to object to the vote of any state and send Congress into hours of debate, thereby delaying the confirmation process and inflaming tensions.

In short, there really is no place for an Electoral College system in a true democracy.

Abolish the Senate
Changing the U.S. Senate might have the biggest impact. The Senate is even less democratic than the Electoral College. The upper house gives far too much power to low-population states. Alaska, North and South Dakota, Wyoming, and Vermont, have one senator for each 300,000 to 400,000 people. By contrast, California has just two senators for its 39 million residents. This distorted apportionment helps allow the extreme right wing to win a solid foothold on power.

Reforming the Senate so that it represents people instead of states would be difficult. One major obstacle is Article Five of the Constitution, the relevant part of which reads: “… no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” Some have suggested that an Amendment to change Article Five might be enough to take the next step in changing the Senate to representation so that is much more proportional to the population distribution. Eric Orts, a professor at the Wharton School of the University of Pennsylvania argues that there may be a statutory way around Article Five. In addition, “through the various voting-rights amendments — the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth — [states] have already given their “consent” by directing Congress to adopt legislation to protect equal voting rights, and this delegated power explicitly applies to “the United States” as well as the states. A detailed working paper by Orts and Andrea Mitchell can be found here.

It could also be argued that abolishing the Senate maintains equal suffrage.

Perhaps nowhere is the Republican power grab, bolstered by the undemocratic imbalance of the Senate, more evident than in Trump’s successful appointment of three Supreme Court justices. The three appointments were approved by a Republican Senate majority, despite those Republicans representing only 44 percent of the population — far fewer than the Democratic “minority.”

Likewise, Donald Trump’s acquittal of charges of inciting the January 6th insurrection resulted from a vote by 43 senators who represented 125 million people compared to the 202 million represented by those who voted to convict.

Abolishing the Senate may seem extreme but the case for doing so was made by the late Michigan congressman John Dingell and articles proposing abolition have appeared in the Washington Post and even in Gentleman’s Quarterly magazine. Paul Krugman, in a response to a NY Times reader’s letter on November 6, 2020, said “Not sure we even need a Senate… It will take some kind of crisis of democracy to revise the rules. On the other hand, maybe that’s not so hard to imagine.” Data for Progress makes a very strong case for abolishing the Senate, noting that smaller states tend to be whiter, with lower levels of immigration, and that “on any issue where the opinions of white people are different from the opinions of people of color, the Senate favors white voters at the expense of people of color.”

Abolishing the Senate would also mean reallocating present responsibilities, such as confirming Supreme Court appointments. The best idea may be to simply merge the Senate into the House (i.e. have a unicameral legislature) with the 100 Senate seats becoming Representatives without regional ties. In other words, add 100 seats to the House open to candidates who run on specific policy proposals, or are elected as party representatives in proportion to a national vote. Such a reform would help put the emphasis on national interests and national policies, as opposed to the current system, which promotes regional discord.

Reform the Supreme Court
How about term limits, instead of lifetime appointments? Why nine justices? And why do decisions carry with just a simple majority vote? If criminal trials are determined (in nearly all states) by unanimity, why should important decisions about the law of the land be determined by a 5 to 4 vote?

The Supreme Court is held up as the final arbiter upholding constitutional law, i.e., a largely unbiased bulwark against the politicization of law. Of course, many people see this perceived neutrality threatened since Trump, a president put in office by a minority of voters, appointed three Supreme Court justices in his brief power-grabbing term. And those appointments were approved by Republican Senators representing 16 million fewer people than their Democratic counterparts.

Throughout U.S. history the Supreme Court has made decisions that upheld anti-democratic laws and social practices that most Americans would consider reprehensible today. A short list:

• The 1857 Dread Scott Decision ruled that blacks were not citizens and therefore could not sue to have rights upheld.
• The 1897 Plessy vs. Ferguson Decision the Supreme Court ruled that segregation was legal if separate and equal.
• On numerous occasions the Supreme Court has ruled in favor of protecting the rights of corporations as though they were people. The first major case was Union Pacific vs. Santa Clara in which the Supreme Court applied the equal protection clause of the 14th Amendment to corporations. The 14th Amendment was adopted in 1868, ostensibly to protect emancipated slaves. It stated that “no state shall deprive any person of life, liberty or property, without due process of law.” But in its first fifty years it was hardly ever enforced with that goal in mind. In 1938 Justice Hugo Black noted that in the five decades since the landmark Santa Clara decision, “less than one-half of 1 percent [of Supreme Court decision] invoked it in protection of the Negro race, and more that 50 percent asked that its benefits be extended to corporations.”[2]
• Perhaps most familiar to our readers is the Citizens United case (2010) in which the Supreme Court ruled that government prohibitions of independent financial contributions by corporations for political communications are a violation of the free speech clause of the First Amendment.
• In Shelby County v. Holder (2013), the Court struck down significant parts of the Voting Rights Act.
• In June of 2019, the Supreme Court ruled that partisan gerrymandering does not violate the Constitution.

So, no, the Supreme Court has not been a progressive democratic force. And, more to our current point, the present antidemocratic imbalance is snowballing so much that a failure to change things soon may become a much more permanent failure.

None of these changes will come easily (for example, there have been at least 700 proposed amendments to modify or abolish the Electoral College — more than any other subject of Constitutional reform) but they should all be brought into any serious discussion about how to reinvigorate our democracy. Changing the Constitution is difficult, but not impossible, it has been amended 27 times. The struggles to end slavery, to win suffrage for women, to pass the Civil Rights Act, all must have seemed nearly impossible at one point. But what the experiences of the last twenty years should teach us, is that if we don’t make these changes the right will continue to have an advantage at winning power and they will use that power to further solidify minority rule.

[1] Michael Parenti, Democracy for the Few, St. Martin’s Press, 1988, p. 67.

[2] Joel Bleifuss, “Know Thine Enemy: A Brief History of Corporations,” In These Times, February 1998.

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Jerry Kloby is the former director of the Institute for Community Studies in Montclair, NJ, and the author of Inequality, Power, and Development (Rowman/Littlefield).