We Can’t Curb the Presidency Without Fixing Congress

“The constitutional Presidency … has become the imperial Presidency.”

The historian Arthur Schlesinger Jr. delivered that complaint in 1973, just ahead of a wave of reforms that sought to cut the presidency down to size. The War Powers Act of 1973, the Anti-Impoundment Act of 1974, the creation of the House and Senate Intelligence Committees in the mid-1970s: These and other measures aimed to restrain the presidency and restore power to Congress.

Following the presidency of Donald Trump, some in Congress are ready for a new round of rebalancing. But any project of reform needs to take something into account: Congress is no bargain either as a representative institution.

Look what happened this past week with the proposal to raise the national minimum wage to $15 an hour. The party that won the 2020 election campaigned on such a raise. The majority leadership in both the House and the Senate supported it. The president wants to sign it. Almost 60 percent of the public backs it.

Yet it will not happen as part of the COVID-19 relief bill. Plans have also collapsed to impose tax penalties on large companies that do not pay their employees at least $15.

If a raise in the federal minimum wage does not happen now, it will not happen soon. Despite the overall unpopularity of the post-Trump Republican Party, it is favored to retake the House of Representatives in 2022, because elections to the House systematically overrepresent Republican votes.

Here’s a way to dramatize how extreme the bias is. Compare the House elections of 2010 and 2020. In 2010, the Republicans won 51.7 percent of all votes cast; in 2020, the Democrats won 51.5 percent—almost exactly the same proportion. But in 2010, the Republican 51.7 percent converted into 242 seats, a decisive majority. In 2020, the Democratic 51.5 percent converted into 222 seats, a narrow margin.

Michael Klarman: The Democrats’ last chance to save democracy

Analysis of district-level voting patterns suggests that Republicans enjoy an inbuilt 2.1 percentage-point advantage in contests for the House majority. Joe Biden won the national vote by 4.6 points in 2020. He won the median House seat, Illinois’s Fourteenth Congressional District, by 2.5 points. The Republican advantage in the Senate is, of course, even more extreme. Not since the mid-1990s have Republican senators represented a majority of American voters. The 50 Democratic senators elected in 2020 represent nearly 42 million more Americans than the 50 Republicans.

Shifting power from an overmighty presidency to a Congress that overindulges reactionary minorities will do democracy no good. The post-Watergate reformers recognized that logic, and joined their limits on the presidency to an attempted modernization of Congress. They well remembered the old joke that the presidential Democratic Party was run by the country’s most progressive-minded people; the congressional Democratic Party, by the country’s most backward-looking.

So as they restrained the presidency, they also modernized Congress. They opened committee proceedings to the public. They set new limits on the formerly almost absolute power of committee chairs. They tightened congressional ethics rules.

In the mid-1970s, the Senate lowered the number of votes necessary to overcome a filibuster from 67 to 60.

Not all of these reforms worked as intended. Some backfired, such as the change to the filibuster rules. Previously, filibusters had been unusual, and the Senate generally operated by majority rule. Once the threshold was lowered to 60, however, filibusters gradually became the norm.

But successful or not, the reformers of the 1970s understood the architecture of American democracy. Power flowed from Congress to the presidency precisely because the presidency was the most accountable branch of the federal government. If the flow was to be reversed, Congress needed to be democratized. This same problem presents itself with even greater force in the 2020s.

In an important new book, Kill Switch, Adam Jentleson offers a harrowing portrait of how anti-majoritarian dysfunction has paralyzed the U.S. Senate. Jentleson formerly worked as an aide to Senator Harry Reid, the Senate Democratic leader from 2005 to 2017, so he writes with an insider’s knowledge. The filibuster is one target of Jentleson’s critique, but not the only one. He is also scathing about the concentration of power in the hands of Senate leadership—a trend to which, as Jentleson acknowledges, Reid contributed more than a little.

At least one point implicit in Jentleson’s argument should be underscored. The Senate is defended by a sequence of rationalizations: It’s good that a Wyoming vote counts 68 times more than a California vote. It’s good that garnering 59 out of 100 votes does not suffice to enact laws. It’s good that any one legislator is able to disrupt the proceedings. These rationalizations have proved contagious. If minority rule is good sometimes, why not more of the time?

As the Senate has deviated further and further from majoritarian norms, the House and the state legislatures have followed. Among the great merits of Jentleson’s Kill Switch is that it reminds us how recent this trend is. When Richard Russell and other Senate segregationists of the 1950s and ’60s defended the filibuster, they did not explicitly argue that the conservative white South was entitled to impose its will on a more liberal majority. They spoke instead about the importance of “open debate”—of letting the minority talk indefinitely. Russell and his allies did not then dare advocate letting the minority govern indefinitely, as has become the practice today.

Kenneth Owen: Minority rule cannot last in America

In the era of the 67-vote filibuster, the tools of minority rule were used to defend racial segregation, a cause that even its supporters did not like to defend openly. But once legal segregation was abolished by law, the principle of minority rule lost its former disreputability. Contemporary exponents of minority rule feel less compunction than the Russells did half a century ago. The 60-vote Senate has become an accepted fact of American politics, along with presidents who lose the popular vote, and state legislatures where 45 percent of the vote is converted into 55 percent of the seats, or more.

Fair political systems always extend consideration to minority points of view. The Framers’ constitutional design balanced majority rights as they were understood at the time—the rights of a majority of those persons possessed of full citizenship who voted in state and House elections—against a federal Senate to protect the rights of smaller states and a judiciary insulated from passing political passions. But it’s one thing to respect regional and cultural minorities; it’s another to let those minorities impose hostile preferences upon an unwilling majority, year in, year out, with every exit from federal minority rule blocked by even more obdurate systems of minority rule at the state level.

Jentleson offers a program for reform that begins with the outright elimination of the filibuster. But without constitutional change more radical than anything contemplated today, the Senate will always remain counter-majoritarian—and Senate reform can accordingly take the country only so far toward the reanimation of the majority-rule principle.

In that sense, the House, often falsely complimented as the “people’s House,” is the part of the government most in need of democratic change. Change to the House depends on change to the anti-majoritarian state legislatures that redraw congressional districts—and that change depends on renewal of the voting-rights laws the federal courts have so weakened over the past decade and a half.

As you can see, there is not one key that can turn a single lock to reopen the return to majority rule. The architecture of American government has been reworked by many hands over some decades to disempower the American majority. Re-empowering that majority will take at least as much effort and possibly as much time.

In the meantime, the federal and state executive branches are the tools most available to the disempowered majority.

Despite the results of 2000 and 2016, it’s still more feasible for an American majority to win a presidential election than to control the House or the Senate, more feasible for a state majority to elect a governor than to elect a majority of state legislators. The mistrust of executive power in the American tradition has sound reasons. Under present rules and conditions, however, executive power is the least anti-majoritarian power in the American political design.

America got the imperial presidency in the first place in great part because of the defects of Congress. From free trade to civil rights, the post-1945 presidency would act to do things in the broad public interest over the truculent obstruction of Congresses dominated by narrow and backward-looking minority interests. But presidents, even the greatest of them, are not magicians. Since 2010, the U.S. political system has been ever more extremely biased toward its narrow and backward-looking ideological minorities. Weaken the executive branches, federal and state, and you privilege those ideological minorities.

Yes, we need reform and repair where recent abuses have revealed vulnerabilities and dangers. It should never again be possible for a president to conceal his financial conflicts of interest as Trump did. The Department of Justice needs to be better insulated from political interference. Congressional oversight needs to be strengthened with more effective subpoena powers.  

But don’t overcorrect, and don’t overdo it. Under present rules and conditions, the executive power, state and federal, is the least antidemocratic power in the American political design. The only hope for bringing majority rule to the rest of American politics is voting-rights enforcement by the federal Department of Justice—and maybe some forward-thinking governors—against the probable resistance of the U.S. Senate, the Republican-dominated federal courts, and the minority-rule state legislatures. The presidency and the governorships have not always advanced the cause of majority rule in the past. They will not always do so in the future. But at this moment, that’s precisely what they’re poised to do. The enemies of the majority-rule principle understand that fact. The friends of majority rule should absorb it too.