MEG KINNARD/AP PHOTO
A statue of pro-slavery South Carolina Sen. John C. Calhoun is lifted out of Charleston in June 2020.
This article appears in the May/June 2021 issue of The American Prospect magazine. Subscribe here.
As Republicans have increasingly become a permanent minority in America, they have resorted to ever cruder schemes to cling to power. This destruction of democracy has been intertwined with the effort to maintain white supremacy as nonwhites became a growing share of the population. The filibuster is both the emblem and the instrument of this minority rule, as well as the connection between slavery, Jim Crow, and today’s strategically racist Republican Party.
Adam Jentleson’s excellent Kill Switch traces the central role of the filibuster as a vehicle both for racial suppression and for Republican minority rule. From the beginning of the American republic, as Jentleson recounts, slaveholding states promoted anti-majority provisions for fear that some future national government might try to limit slavery. In the twisted ideology of the Southern slaveholding elite, they and not subjugated Blacks were the aggrieved minority whose rights had to be protected from a majority that didn’t appreciate the South’s “peculiar institution.”
The founders of the republic included multiple checks and balances, Jentleson notes, but the filibuster was not among them. The Articles of Confederation, requiring votes of two-thirds of the states for national legislation, had been a disaster. At the Constitutional Convention, Southern delegates tried to replicate some of this weakness piecemeal. They “pushed for a provision requiring a supermajority to pass all legislation governing interstate commerce and the navigation of waterways,” Jentleson writes. This was rejected. A supermajority, Hamilton warned in Federalist 22, “is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory.” He added, prophetically, that the result would be “tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.” Yet today, the filibuster is treated by its defenders as if it were part of the Constitution.
In the Jacksonian era, the South, led by South Carolina Sen. John C. Calhoun, sought to protect slavery by asserting the right of states to nullify federal laws. This also failed. Then in 1841, Calhoun and his allies invented the precursor to the modern filibuster—the tactic of holding the Senate floor indefinitely to kill a bill. Despite delays, however, the Senate still functioned by majority rule.
The republic literally came apart over what was meant by minority rights. After decades of failed compromises, it took a Civil War to settle the question of slavery. But the race issue was far from settled, and Calhoun’s legacy persists to this day.
With the crushing of Reconstruction in 1877 and the adoption of state Jim Crow laws to keep Blacks subservient, Southern politicians feared another burst of federal civil rights legislation. They regularly resorted to Calhoun’s tactic of talking a bill to death. Only in 1917 was the modern filibuster formalized with the enactment of Rule 22, giving the Senate the right to cut off debate with a two-thirds vote. This was intended to limit the traditional talking filibuster. But ironically, the rule gave the Southern minority just the weapon they needed: If they could muster just one-third of the Senate, they could block any legislation. From 1877 until 1964, Jentleson notes, “the only bills that were stopped by filibusters were civil rights bills.”
Invoking cloture for the first time to pass the 1964 Civil Rights Act, the 71 senators who voted “aye” included more than half of the Senate’s Republicans. But far from signaling the eclipse of the filibuster or a new era of bipartisanship on civil rights, this one-off victory prefigured a new age of minority rule. Calhoun would triumph after all. Just four years later, Richard Nixon devised his Southern strategy to peel away white voters resentful of the changes in the racial order. Republicans and Dixiecrats soon reversed roles. The racist “Solid South” remained; only now it was a Republican South.
Jentleson, a former aide to Sen. Harry Reid and student of Senate history, narrates the mutation of the filibuster from a special gimmick for blocking civil rights laws into an all-purpose anti-majority device for general obstruction. The two-thirds requirement was reduced to 60 percent in 1975. But by the time Mitch McConnell became Senate Republican leader in 2006, it was taken for granted that to legislate in the Senate, you needed 60 votes. Under Obama, the Republicans routinely filibustered nearly everything Democrats proposed.
The takeaway here is the direct lineage from the warped Southern conception of anti-democratic “minority rights” to defend slavery, and the racist use of the anti-democratic filibuster to maintain Jim Crow, to the assault on democracy by Republicans in the 21st century. If we lose the democratic republic created by America’s constitutional founders, it will be the ultimate legacy of America’s original sin.
THE METASTASIZED FILIBUSTER has epitomized Republican minority rule but is only one tactic among many. Thanks to extreme gerrymandering in the House and the original gerrymander of equal state representation in the Senate, even when Democrats win a majority of votes Republicans can control Congress. And thanks to the Electoral College, another anti-democratic feature of the Constitution, the winning Republican candidate lost the popular vote in both 2000 and 2016. In 2020, Joe Biden won his key Electoral College states (Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin) by a total of less than 300,000 votes, but carried the national popular vote by more than seven million. The Electoral College also gives myriad state officials the opportunity to obstruct or overturn the verdict of the voters, a fate narrowly averted in 2020.
The more that Republicans find themselves in the national minority, the more they resort to such anti-democratic tactics as racial gerrymandering, selective closure of polling places, racially targeted voter ID requirements, phantom allegations of voter fraud, and extralegal purges of the voter rolls, as well as routine use of the filibuster. The broader story of democratic decay has been the subject of shelves full of books. To save yourself from having to read all of these, you cannot do better than to consult Michael Klarman’s magisterial article, “The Degradation of American Democracy—and the Court,” which consumes 260 pages of the November 2020 Harvard Law Review. Unlike most law review articles, this one is written in narrative style and compelling prose. It deserves to be a short book.
Klarman adds telling details to the story that we all sort of know, and superbly connects the dots. His subjects include an introduction on how autocrats go about destroying democracy, and Trump’s similarity to other autocrats. For those who can stand to relive those awful days, Klarman reminds us of all the ways Trump set about destroying democracy. He then connects this to the deeper assaults on democracy, including voter suppression, the use of media devoted to Big Lies, the substitution of money for speech, and the Republican penchant for ideological and tactical hardball while feckless Democrats kept pursuing bipartisanship.
Not surprisingly, Klarman, as a professor of constitutional law, emphasizes the use of right-wing courts as abettors and enablers of democratic demolition. Most readers will be aware of the landmark cases, such as Buckley v. Valeo and its progeny in defining money as speech, ending with Citizens United, and Shelby County v. Holder in gutting the Voting Rights Act. But as Klarman recounts, these cases are just a small portion of how courts have systematically and insidiously helped Republicans destroy American democracy. In the 2008 case Crawford v. Marion County Election Board, the court green-lighted voter ID requirements plainly intended to depress minority and Democratic voting. And in 2018, in Husted v. A. Philip Randolph Institute, the high court allowed targeted purges of voter rolls. This direct complicity of the Supreme Court in partisan and racial voter suppression also has antecedents in the role of the courts in helping to preserve slavery, most notably in Dred Scott (1857), which denied free Blacks all rights of citizenship.
The metastasized filibuster has epitomized Republican minority rule but is only one tactic among many.
Klarman does leave out one important part of the story. Democracy is not just about what voters, legislators, presidents, and courts do. It’s about what citizens do. While Republicans and their judicial allies were systematically sabotaging the elements of electoral democracy, the citizen engagement that breathes life into formalistic process was also being weakened. More precisely, citizen participation was being weakened among non-elites. As I wrote in a piece for the Prospect called “Tocqueville for Toffs,” Alexis de Tocqueville’s admiring characterization of Americans of “all stations of life … forever forming associations” has ceased to describe regular people, while elites are networked as never before, producing disproportionate influence for the rich.
The definitive books on this trend—three of them over more than two decades—have been written by Kay Schlozman and colleagues. Their most recent work, Unequal and Unrepresented, documents the worsening of trends they first identified in their 1995 book Voice and Equality. Institutions of working-class representation, notably labor unions, have continued to be assaulted. Instruments of recruitment of lower-income people into political participation are far weaker than avenues for participation and influence of elites. Digital forms of political expression and participation are tilted toward elites. On every measure of political engagement, from registering and voting to contacting officials, the class gradient has only worsened, as has trust in public institutions. So even without the explicit assaults on basic democratic processes, our democracy was already softened up for the more deliberate blows.
WHAT TO DO ABOUT all this? The books offering remedy fall into two broad categories. One category provides a wide assortment of ideas for strengthening democracy, sometimes mindful of their political realism, but sometimes not. For instance, Alex Keyssar’s recent Why Do We Still Have the Electoral College? is a brilliant history, analysis, and critique of one of the most undemocratic elements of our supposed democracy—and another anti-democratic device whose roots were partly racist, since direct election of the president would have prevented the South from counting the votes of slaves who could not vote. (Even in the Jim Crow era, when Black citizens were denied the vote in much of the South, the Old Confederacy still kept its full Electoral College votes.) But as Keyssar ruefully acknowledges, getting rid of the Electoral College will be no mean feat, especially since so many states benefit from the status quo.
The Harvard political scientist Jane Mansbridge makes the case for broad use of citizen assemblies, both as a way of engaging people more directly in the business of governing, and to give citizens who think they have nothing in common the experience of realizing that once they get in the same room and thrash out practical problems, they find they have much in common with their perceived enemies. This idea is a cousin to the long-standing work by James Fishkin and others, showing that “policy juries” can reduce polarization and build trust. While this concept would surely enhance democracy in a civic sense, the question is whether it is powerful enough to overcome the crudely anti-democratic ploys of one of our two major parties.
BILL CHAPLIS/AP PHOTO
Civic reformers should not be abashed about the goal of taking power and should become more effective at understanding how to attain it.
Ganesh Sitaraman’s two books The Great Democracy and The Public Option (written with Anne Alstott) are filled with ingenious ideas for strengthening the public sector and also bolstering our democracy. Sitaraman calls for national service, a revival of antitrust, and a greater recognition of the connection between economic equity and political democracy. He proposes public funding of journalism, better welcoming of immigrants, corporate reform, and financial democracy. These books are also filled with smart ideas for the strengthening of public institutions such as social banking, and demonstrate (in The Public Option) that true public institutions, such as public schools and public child care, are more efficient as well as more equitable than private ones trying to carry out public purposes.
Sitaraman is persuasive on the point that ideas like these would feed on themselves by restoring a virtuous circle of citizen engagement with government and citizen trust in government, as well as by enhancing democratic institutions directly. But the more that these creative ideas promise to enhance democracy and revive an effective public sector, the more fiercely Republicans will oppose them. The dilemma recalls the Depression-era line: If we had ham, we could have ham and eggs, if we had eggs.
A second cluster of books looks more explicitly at the politics of engaging more citizens, and frankly electing more Democrats, both for partisan and ideological purposes and to garner enough votes to repair democracy itself. Upending American Politics, a collection of studies edited by Theda Skocpol and Caroline Tervo, undertakes a systematic examination of what went wrong on the ground in 2016, and what went right in 2018. One phenomenon that has advantaged Republicans, especially Trumpist ones, is the growth of extra-party organizations such as the Koch network that work hand in glove with Republican infrastructure. On the Democratic side, relations between the institutional party and independent progressive or “resistance” groups are more catch-as-catch-can and sometimes fraught. Nonetheless, it all came together in 2018 to produce big Democratic midterm gains. The lesson, Skocpol concludes, is to make the election of Democrats a broad project that welcomes a wide spectrum of support. If we can get that done and elect more Democrats, Biden’s leftward shift suggests that the policies will take care of themselves.
The connection between the repair of civic life and the election of progressives is addressed in Civic Power, a valuable review of the democracy literature by K. Sabeel Rahman and Hollie Russon Gilman. They are rightly skeptical of what they call the “good governance ethos.” They write:
The fundamental problem with the good governance ethos is that it rejects the value and importance of political disagreement and contestation. This is what is most structurally insufficient about the attempts to revive democracy through civility, transparency, rationality, or anti-corruption: these efforts at their core share a dislike of politics itself.
As a result, they conclude, good-governance reformers tend to ignore the deeper roots of democratic failure in America—deep disparities of wealth and opportunity that in turn lead to disparities of influence and power. There is a small subset of bipartisan policies that repair the civic fabric, such as nonpartisan districting commissions, that occasionally have received Republican support, though most have been created by referenda. In a very few states, such as Kentucky, Republicans have been willing to support measures that reduce barriers to voting, because they find it in their interest. But given the ferocity of the Republicans in undermining the most basic of rights, it is hard to make the general case that bipartisan civic reforms are the road to stronger democracy.
Civic Power is especially good at distinguishing between ideas that are potentially useful in enhancing democracy but wishful as a road back to the power needed to get them enacted.
Civic reformers, therefore, should not be abashed about the goal of taking power and should become more effective at understanding how to attain it. “Civic power,” Rahman and Gilman write, “rests on the ability of constituencies to organize into durable, and effective, mass-member organizations capable of exercising political power.” Much of the book is a nuanced discussion of which civic reforms enhance political power, and which strategies of organizing are effective. Today’s progressives are dedicated to enhancing democracy. Elect enough of them to power, and democracy reform will take care of itself.
It’s important to get this right. Over the long run, it’s true that social factors such as the weakened avenues for engagement of working-class people and the double-edged impact of the internet and social media pose challenges to democracy. It’s also true, as I’ve argued in other articles and books, that capture of governments by elites and the destruction of an equitable social contract has caused people to lose faith in leaders and in democracy itself. But in the United States, the cruder and more deliberate assaults on the most fundamental elements of democracy are not a symmetrical weakening of “guardrails” by broad social forces; they are the partisan work of Republicans.
And yes, Democratic presidents as well as Republican ones were partly complicit in the erosion of democracy, by expanding executive power, secrecy, and the surveillance state; taking the nation into undeclared wars; weakening the democratic accountability of large corporations; and letting donors speak louder than voters. Yet under Democrats, civil and voting rights were enlarged and defended; and the most fundamental democratic right of citizens, to vote leaders in or out, was expanded.
Today, the project of reclaiming and reviving democracy is necessarily a partisan one. Though civic innovations are valuable in their own sphere, today’s Republican Party is so thoroughly committed to destroying democracy that the necessary repair can begin only when the Republicans are annihilated at the polls and some kind of successor party that accepts democracy emerges. Given the degree of voter suppression, that epic defeat will require a successful Biden presidency whose benefits may convert independents and former Trump voters, as well as an unprecedented citizen mobilization to vote. One of our two major parties is likely to be committed to destroying democracy for some time to come. Until a successor party emerges, the task of defenders of democracy is to assure that Republicans suffer crushing defeats—and to admit that this enterprise must be political before it can once again be civic.
