The Founding Fathers did not debate either the filibuster or gerrymandering, and the Constitution makes no mention of either anti-majoritarian device. The explanation for these omissions is that Madison and his cohorts believed in majority rule as a “fundamental principle” of democracy. Hamilton wrote in one of the Federalist Papers that to give the minority “a negative upon the majority” would, by definition, subject the “greater number” to the “sense of the lesser.” If a “pernicious minority” can control the outcome, he went on, then government in America would ultimately be subject to “contemptible compromises of the public good.”
How did we get from this original understanding of “We the people” to the point where 41 senators can override the intent of 59 senators? A filibuster was theoretically possible almost from the beginning, but the device only emerged as a serious political weapon in the 1940s, when Southern Democratic senators realized they could use it to delay or prevent anti-discrimination legislation. In 1957, Strom Thurmond from South Carolina got up and set a record by filibustering a civil rights bill for more than 24 hours. (The bill ultimately passed.)
It got worse in the 1960s, with Southern Democrats fighting against the Civil Rights Act of 1964. The only way to stop them was by means of “cloture,” meaning a three-fifths (60 senators) vote. The filibuster, as it then existed, meant that one or more senators monopolized Senate business by talking for hours on end.
Today, after trying various ways of both keeping the filibuster and getting Senate work done at the same time, we have a system where its simply takes 60 senators to pass most bills — no need for long-winded senatorial speechifying. That used to include judicial confirmation votes as well, but under the arcane rules of the Senate, it only takes a majority to change the rules.
First came the Democrats, holding a majority in 2013. Looking to bypass a Republican blockade on judicial appointments, they eliminated the filibuster for federal judges, except for the Supreme Court. Then came the Republicans, holding a majority in 2017, and they voted to change the rule again, this time so that the Republican president’s Supreme Court nominees were also exempt from the filibuster. The so-called “nuclear option” cuts both ways.
There is another way of getting around the filibuster, something called “budget reconciliation.” It is too complicated for me to understand, much less explain, but it has to do with certain kinds of appropriations laws. That is how the Biden administration was able to enact the $1.9 trillion American Rescue Plan just the other day with 50 senators voting aye.
What we have, in the case of the filibuster, is the opposite of majority rule. The same is true of gerrymandering, the whole point of which is for the party in power to arrange voting districts every 10 years in such a way as to keep it in power. It is a noxious practice, every bit as bad as the current wave of proposed state laws designed to impede qualified voters from voting. Many states, Wisconsin being a blatant example, have created electoral districts in such a way that a minority of voters elects a majority of legislators.
Believers in good government have tried various ways to cure the evils of gerrymandering, with limited success. The Supreme Court has adopted a “hands off” approach — declining to enter what Justice Felix Frankfurter once called a “political thicket.” Not all courts have avoided the issue. Two years ago, the Pennsylvania Supreme Court began an opinion with the words, “It is a core principle of our republican form of government that the voters should choose their representatives, not the other way around.” Unlike the Supreme Court, that state court had no problem taking up the question of gerrymandering on the merits, deciding that it violated the Free and Equal Elections Clause of the state constitution, and finding a workable standard that would give the power to decide back to the people.
Both the filibuster and gerrymandering effectively violate the principle of “one man, one vote,” announced by the Supreme Court’s 1962 Baker v. Carr decision. Under that ruling, which dealt with voting districts in Tennessee, 100 people in one district could no longer get the same number of legislators as 1,000 people in another district. But that notable case did not deal with the thornier problem of the weight each vote gets.
I won’t mention the Electoral College except to say that it is a kind of gerrymandering clothed in constitutional armor. Twice in this century the presidential candidate with the most votes lost. Theoretically, we could amend the Constitution, but even if Congress voted to do so, getting three-fourths (38) of the states to agree is somewhere between improbable and out-of-the question.
According to a recent Pew Research poll, 70 percent of Americans favor the virus relief bill, which passed by a vote of 50-49. If it were not for the reconciliation process work-around, which is no solution to most of our pressing national problems, this law would have never made it to a vote. That, I suppose, would have pleased 30 percent of the population.