03/18/2010 05:12 am ET Updated May 25, 2011

The Tyranny of the Minority

We are in a crisis of governance at the moment not because of excessive partisanship or lack of leadership, but because the American political system has become anti-democratic and dysfunctional. Arcane Senate rules have turned a republican system which already magnifies minority power into intolerable anti-democratic gridlock. A single Senator can put a "hold" on a nomination and leave critical agencies understaffed and leaderless in times of crisis. Republicans have 40 Senators, just enough to sustain a filibuster under current Senate rules, and they are using that magic number of 40 to present a sustained and united front to block legislation, confirmations of officials, blocking judges and in general doing everything they can to prevent a gifted politician like Barack Obama from governing.

Rather than use the filibuster as an occasional tactic to try to block the most controversial of legislation (itself problematic for democracy, e.g., decades of Southern filibusters of civil rights), they are using it as a daily tool to impose a de facto super-majority. It is almost certain that Republicans will have more seats in the next Congress. Filibusters were used an average of once a year in the 1950's; there were 139 filibusters in 2008. Thus today, any legislation that cannot command 60 votes (except on budget matters) is dead. We cannot rely on the self-restraint of a minority party (any minority party) to save the structure of government when it has the power to destroy it and particularly not now. The filibuster and the "holds" must go.

We have never lived in a democracy; we live in a republic. While the Framers may not have envisioned that California, with more than 36 million people would have the same number of senators as Wyoming with 530,000, that is the system that they established to break the deadlock between the interests of small and large states. At the time of ratification, the difference in population between the largest state (Virginia) and the smallest (Delaware) was only about 12 to 1 rather than today's 72 to 1, the framers nevertheless established a structure in which smaller states would necessarily exercise disproportionate power. Today, thirty- three of fifty states are below the mean in population and so they are over-represented in the Senate. As the country has developed, most of the smaller states are states with large territories and low density populations, giving disproportionate power to rural agricultural and ranching interests. Not surprisingly, they are heavily red states. To be sure, some large states are very red (Texas, Georgia) and some small states are blue (Vermont, Rhode Island), but by and large, the republican system as it functions today vests greater power in reliably red, "square states" of the Great Plains and the Southwest.

No one is suggesting that after nearly 225 years, we should have a constitutional "do over" to create proportional representation. But we do need to recognize that we begin with anti-democratic structures built into the system and we need to pay careful attention to adding additional anti-democratic features that are extrinsic to the system and that are at the core of the current political paralysis at a time when the challenges of governance are unprecedented. Today, the Democratic margins in the House and Senate are historically anomalous. In any ordinarily functioning Parliamentary system, a party commanding these margins could implement whatever program it wanted and the voters could observe the results and render its verdict accordingly. But the spectacle of the health care bill lays bare the difficulty of any party implementing a coherent program, or even of implementing the most watered down of programs.

Partisanship is often put forward as the culprit. President Obama came into office singing the tune of bipartisanship to such an extent that Barney Frank lamented "post-partisan depression." But partisanship has been a constant of American democracy and the stranglehold of the political class on redistricting makes partisanship inevitable. Nor is there anything particularly wrong with partisanship as long as the system functions properly. Democrats should not be shy about exercising power, and they should not be bullied by hypocritical claims that they are not following some illusory model of bipartisanship. The problem is not an excess of partisanship; it is the use of partisan politics to achieve anti-democratic political outcomes.

Despite the talk of commentators that President Obama is somehow passionless or directionless, it is not a failure of inspiration or policy goals that is causing the current crisis of governance. No one can make and impose the tough choices of governance when a small minority has the power prevent any meaningful or significant action and uses this power as an end in itself. When Bill Frist threatened the "nuclear option" to eliminate the filibuster for judicial nominees in response to Democratic blocking of Bush judges, the bipartisan "Gang of 14" came to the rescue to save the filibuster. It was a fool's errand. There is no bipartisan gang to save the Senate from itself and there is no need for one.

We have an Upper House in this country that is counter-majoritarian in concept. What we cannot have is a house that imposes procedural rules that turns it from a wise and gentle brake on democracy to a fatal pile-up. Although there is an argument that the filibuster itself is unconstitutional because it deprives the Vice President of his constitutional role of breaking ties, there is no need for recourse to the courts. Harry Reid should revise the rules. Will there be partisan screaming? Of course. But he will have done a great service to the country to make the Senate a functioning policymaking body at a time that it must be.