Jose Luis Magana/AP Photo
Demonstrators at a voting rights rally at the U.S. Supreme Court, October 28, 2021
“We have to prove democracy still works,” President Biden told a joint session of Congress last April. “That our government still works—and can deliver for the people. In our first 100 days together, we have acted to restore the people’s faith in our democracy to deliver.”
That, alas, was then. When Biden spoke, Democrats had recently enacted extraordinary emergency legislation, the American Rescue Plan, enabling Americans to get through the disruptions of the pandemic. It included a Child Tax Credit that if fully taken up would halve the rate of child poverty. Things were looking bright.
But that was before two renegade and self-absorbed Democratic senators made it impossible for the legislative branch to enact needed legislation by majority vote, and before the Gang of Six right-wingers on the Supreme Court made it impossible for the executive branch, even when empowered by Congress, to act to save thousands of American lives.
In other words, that was before last week, when Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) refused to allow a majority to protect the citizenry’s right to vote. There is a planned vote on Tuesday, but given the assured outcome it’s little more than a formality, and another body blow to a legislative session that has already seen the Build Back Better Act, comprising virtually the entire Biden domestic agenda (save $55 billion a year in extra infrastructure spending) grind to a halt, thanks to these same senators.
Also last week, the Supremes ruled that the Occupational Safety and Health Administration lacked the authority to require large workplaces to protect their workers from a deadly pandemic with vaccinations or masks. To be sure, the 1970 act establishing OSHA clearly states that the agency has the mission of protecting workers “exposed to grave danger” from “substances or agents determined to be toxic or physically harmful or from new hazards.” But somehow, the Death-Dealing Sextet managed to overlook that. Some of the Six noted during oral arguments that people could contract COVID anywhere, so it was not specifically a workplace hazard. But people can also be burned to death anywhere, which hasn’t negated OSHA’s authority to set fire safety standards in workplaces.
The problem with the distinctly American inability to address fundamental needs isn’t due to an excess of democracy. Rather, it’s due to a lack of it.
Led by China, some among the growing number of authoritarian regimes are now arguing that they can respond to emergencies and public demands more quickly and efficiently than process-encumbered democracies (a claim dating back at least as far as Mussolini’s boast that he’d made Italy’s trains run on time). It’s those claims that Biden commendably wants to contest. But having seen the inability of our government to defend both the right to vote and the right to life, all on a single day, it may seem that China has a point.
But the problem with the distinctly American inability to address fundamental needs isn’t due to an excess of democracy. Rather, it’s due to a lack of it. Our system of government has embedded in its design so many varied and insidious ways to thwart majority rule. Beginning in the 1950s and ’60s, in response to the movement for Black equality, the primary focus of American liberalism over the past half-century has been ensuring minority rights. The lesson of the past five years, however, has been that not only do minority rights need to be defended, but that majority rule needs to be established.
Consider: Democrats have won the popular vote in seven of the last eight presidential elections, but have won the White House in just five of them, thanks to the anti-majoritarian bias of the Electoral College. Consider: Five of the six Republican-appointed Supreme Court justices were named by Republican presidents who lost the popular vote (the only exception is Clarence Thomas). Is it any wonder that these justices may align themselves with what is distinctly a minority opinion to repeal such fundamental and long-established rights as those of Roe v. Wade? Consider: The Senate is constituted as a distinctly anti-majoritarian body, giving equal weight to both Wyoming and California, though there are 70 residents of California for every one resident of Wyoming. Consider: Representation in the House is increasingly determined by district line-drawing rather than a proportional representation system that would actually reflect the public’s support for parties. Consider: The malapportionment problem is arguably worse among several Republican state legislatures, which in many states then draw those congressional district lines (and their own) to entrench their rule. Consider: The Senate’s anti-majoritarian bias is further heightened by its filibuster rule, which requires a supermajority to enact legislation.
Is the American system dysfunctional? Of course it is. Is that due to the inherent limitations of democracy? Absolutely not. Can a minority party manipulate the anti-majoritarian structures put in place by the Constitution to win control of the government even in the face of a majority party? It can and it has. And it’s precisely the Republican Party’s fear that the growing number of minorities and the young will lock it ever deeper into minority status that has made its defense of anti-majoritarian institutions and reliance on voter suppression its existential priorities. Of course, it could change its policies to better appeal to those constituencies, but having solidified its base around the fear that it’s about to be “replaced” by those groups, such a course reversal is completely off the table.
None of this negates the fact that the Republicans, Sens. Manchin and Sinema, and the Supreme Court Six provided invaluable assistance to Xi Jinping last week by confirming his contention that America—at least, the nation, if not democracy itself—cannot guarantee its citizens’ supposed rights or meet their most basic needs. I’m not alleging that Manchin, Sinema, Alito, Gorsuch, and the gang are in the pay of Chinese intelligence, or anything like that. To the contrary: Xi is getting them to bolster his argument for authoritarianism, to make China’s case, for free.
