Minority, Plurality, Majority Rule

Every now and then the president we elect doesn't get a majority of the popular vote. It's happened several times, and there are two variations of the problem. There are instances when, because there are more than two candidates, none gets a majority of the votes, but the one with the plurality is elected. That, however, isn't always the case. Sometimes in a presidential contest a candidate with a minority of the popular vote – and less than his opponent – wins more than half the electoral votes, and, thus, the presidency. It usually triggers a debate over whether the Constitution should be revised in accordance with our “one man [person], one vote” principle, but no action is taken and the debate dies out until it happens again.

It did. And, at least for the moment, the debate has died out.

Indeed, the angst regarding the Electoral College has abated for the time being. People objected to a minority president with 46.2% of the popular vote. (He had over 56% of the electoral vote.) His opponent would also have been a minority president. (Most of us – and that includes me – opposed them both.) But we aren't of one mind on the issue of whether we favor majority rule. Some have marched to protest the results of the last election, but the calls for an end to the current way of electing a president are no longer prominent. On the surface the matter seems obvious, but it is far more complicated, and there is much to be said for the view of our Founders. That, however, is not the subject of this essay, so let me return to the point.

We're great believers in democracy which, we insist, requires majority rule. The concept needs some tweaking because all issues are not binary, and there are times when we accept the view of the largest number – a plurality rather than a majority. And the rule applies to large or small numbers. For example, a majority vote by a full Supreme Court may mean that five people decide our laws, irrespective of the wishes of our legislators or ourselves. The Court has that right, and we support the majority.

Yet we back minorities elsewhere, and the media report immediately even on minuscule minorities when they protest. The reason for their protest is irrelevant. Whether it is about elections, immigration, policing, abortion, or any other cause – and irrespective of the number of participants, even if small – the media and public sympathy support virtually any protest. Minorities say they represent our values and we owe it to them to express our admiration. For example, if a group protests the wealth of the “one percent” (a minority but that's irrelevant in this case), it doesn't matter that the group is far smaller than the one percent or, if their lottery ticket is a winner, they'd be part of it. We sanction their indignation. And if they are members of a “minority group” named by the government, we approve even more strongly of the virtue of their cause, whatever it is. We love minorities.

Similarly there's no protest of the Senate rule allowing a smaller minority than in the election, by threatening filibuster, to block critical debates – to prevent the discussion of and action on issues that bear on our everyday lives. A problem relating to the Senate rules that may appear daily gets little more than a shrug of the shoulders and acknowledgment that that's the way the “game” is played. In fact we often admire what they do – not giving in to what they claim is evil. We laud them for preventing the majority from running roughshod over the minority, as we do in other situations. They may be simply following party discipline and creating issues for the next election, yet they claim to be a minority that stands up for principle.

Sometimes, however, the minority has too much power. We're advised to pick our arguments carefully, but sometimes we argue and oppose for their own sake. We don't take stands on what really affects us, reserving our wrath for our opponents, rather than their positions. And we lend our support to particular groups because of who they are, rather than the issues for which they advocate – while we avoid the real problems we face as we join a popular protest.

It's clear. Filibuster reform should precede changes in the Electoral College. The Senate is where the most disruptive minority functions – or refuses to do so. It should have to deal with the real problems we face rather than posture and politic.

And the rest of us should decide the limits of minority rule.

The American Way

According to yesterday's Wall Street Journal (January 4, 2016), in an article written by Siobhan Hughes,

“[T]he House is expected to vote on a measure to defund Planned Parenthood and repeal part of the Affordable Care Act. The measure, which already passed the Senate as part of a procedure known as reconciliation, is expected to be vetoed by President Barack Obama.”

Predictable, but welcome. Not that I either oppose or favor Planned Parenthood or the Affordable Care Act (I have strong feelings on both subjects but they're not pertinent here – indeed, they're impertinent) but the procedure itself (an over-ride debate and vote following a presidential veto) is one that has been functioning for a long time but is ow all but dead. President Obama is the first President since Lyndon Johnson not to have a veto over-ridden.

Congress doesn't work, and we're all paying the penalty for that. We live under a system that favors politics over policy. There's no room for compromise. Congress has been paralyzed, and when different parties control the House an the Senate it is unlikely that any controversial legislation will be passed. Even when, as is true now, one party has a majority in both houses, the need for a “filibuster-proof” majority in the Senate (sixty votes – virtually unattainable) to end any threat of an endless harangue, makes it unlikely to happen. Virtually all the issues boil down to a clash of ideologies between the parties, and sometimes within them. Believing themselves to be warriors for “right” and “truth,” those with strong opinions are unwilling to compromise with “evil.” And they are also unwilling to allow what they view as wrongheaded bills to be passed. They'll use the virtue they see in their obstinacy “courage” in the next election campaign as what they expect to be a selling point.

Sometimes, however, what is being debated has, in their minds, some positive features. They're happy to compromise on those proposals, as long as the opposition accedes to their most cherished views. That, unfortunately, is the goal of the other party as well. So the result is often – though not invariably – a stalemate.

As noted above, another tool of a minority in the Senate is the filibuster. Noble in purpose but subject to abuse, this tool has changed over time. As Common Cause puts it,

“American government is based on the principle of majority rule. But in the U.S. Senate, a minority has turned that principle upside down. The filibuster rule, designed to protect the minority's right to be heard, has been transformed into a weapon that allows just 41 of 100 senators to squelch debate and block action on any bill, no matter its importance or public support.”

Originally a filibusterer had to speak continuously, and the Senate could not take up any other business during such an action. It took a great deal of effort and dedication for a Senator to undertake such a tactic. It was serious business. But now, the Senate

“made it significantly easier to filibuster by adopting rules that allow other business to be conducted while a filibuster is, technically, underway. Since 1975, senators have not needed to stand up on the floor and make their case to their colleagues and their constituents in order to halt legislation. Instead, these “virtual filibusters” can be conducted in absentia.” (nolabels.org)

It's easier now. No effort is needed. It's a great political maneuver at virtually no cost

Apart from convictions, there are other reasons for this self-imposed congressional impotence, but I'll focus on just one. That is the desire to protect the President. If a bill never reaches the President, he doesn't have to veto it. And for legislation that may have broad constituent support, it is beneficial to not be forced to go against the people who elected you.

That, however, in addition to thwarting both congressional and popular wishes, eliminates some of the benefits which might be gained by an end to the protection against the need for a veto. A minority that knows it can defeat any attempt to pass legislation not in keeping with its views, or those of its leader, has little inducement to negotiate and look for a middle ground. If they can prevent their opponents from having their way, why compromise? In addition, this may harden the position of the majority, making them appear to be intransigent. By doing so, however, they might present voters with a clear issue for the next election – but this issue can be muddied by presidential rhetoric.

Since the President gets far more press coverage than any member of Congress, his message will be spread to all voters. That message will probably include the accusation that Congress is unable to accomplish anything, which is just what a minority would like the American People to hear and believe. It's the minority's hope that promises to “make Congress work” will be their path to becoming the majority.

And in addition to accusations of congressional incompetence and inaction, the President will sign Executive Orders to authorize the actions he wants – irrespective of the preferences of Congress and the voters. Presidents do this anyway, whether or not such action is authorized by the Constitution, but in this case he can shift the blame to Congress.

It all boils down to congressional weakness and the presidential acquisition of power. And a change in the filibuster rules which make it easy to avoid responsibility. Like a Senate hold on an appointee or on other legislation (which effectively confers veto power on a senator), the filibuster puts too much power in the hands of individuals and minorities. Such senatorial rules as these – not specified in the Constitution – make us all pay for political actions of the few.

Congress doesn't work. But the problems are not insoluble unless we allow them to be so. Congress can become stronger and more effective if it wants to be. They made their own rules and they can change them – if we force them to.