Par Sarada Nateshan, Etudiante au sein du Master Droit économique and Louis Tapon, Diplômé du Master de politiques publiques de l’Ecole d’Affaires Publiques
The events of the past month, from the storming of the capitol building to the first weeks of the Biden-Harris administration, have shown the limits of the governing capability entrenched in the US Constitution, in the voting system, and in the US Senate’s procedural rules. It currently seems structurally impossible to pass the ever-more needed reforms. The failure to reform fuels the desire for populists, which in turn create the need for a return to normality and gridlock. The US seems to have found itself in a 21st century’s Catch-22, write Sarada Nateshan and Louis Tapon.
In Joseph Heller’s 1953 masterpiece, Catch-22, Orr, a World War II bomber pilot, requests a mental evaluation, hoping he would be found not sane enough to fly and hence escape the dangerous bombing missions over Italy. However, the military base’s medical doctor promptly informs him that the mere fact of asking for a psychiatric evaluation is proof enough of Orr’s sanity and fitness for combat. The “catch,” the readers progressively discover, is that the only solution to the problem is denied by a factor inherent to the problem.
This is the situation the United States finds itself in, as the Biden administration struggled to pass an additional $1,400 stimulus check as part of its $1.9 trillion Covid relief plan. While ever-increasing partisanship, the segmentation of the news media, and the rampant influence Donald Trump and his followers are having on the Republican party can all be cited as reasons for the current and future gridlock in Washington, the roots of the problem lie in the structure of the voting mechanisms for the presidency and the US Senate, entrenched in the Constitution, and the effects it produces.
When it comes to the US Senate, the bicameral Congress is essentially the result of a compromise between the willingness, in a federal country, to represent all states equally, and the need to have a legislature directly representing the people. The resulting decision, in the form of the Connecticut Compromise of 1787, led to the Chamber of Representatives, renewed every two years, and the US Senate, with two senators from each state that were appointed by the state legislatures until the 17th Amendment ensured direct elections of senators in 1913.
While the 17th Amendment was thought of as a way to make the Senate more democratic, the two-senators-per-state rule, protected by Article V of the US Constitution, which provides that “no state, without its consent, shall be deprived of its equal suffrage in the Senate,” ends up creating an imbalance in the weight of individual voting power across the country. The US demographic trend is making it ever clearer that 15 states – Alaska, Idaho, Utah, Wyoming, North Dakota, South Dakota, Nebraska, Kansas, Oklahoma, Arkansas, Louisiana, Mississippi, Kentucky, and South Carolina – make up around the population of California, while sending 30, reliably Republican, senators to California’s 2. Article V of the Constitution, which ensures such an imbalance of voting power, thus serves to continually perpetuate this tyranny of the minority in the US.
A similar observation could be made regarding the electoral college, and the way presidents and vice-presidents are elected. While modified by the 12th Amendment in 1804 to ensure a unified ticket at the head of the executive branch, Article II, Section 1 of the Constitution sets out an indirect, state-based form of vote. Even though Alexander Hamilton in the Federalist no. 68 stated that such a voting mechanism would ensure that the election of the President would not be subjected to a “faction” of a “pre-established body,” recent developments have proved him wrong. Undesirable though it might have been for the Founding Fathers, the resulting system privileges certain states and their voters over others. In the past six elections, the winner of the electoral college has twice differed from the winner of the popular vote.
These voting mechanisms, both for the US Senate and the Presidency, have survived the passing of time and tireless reformers, primarily due to the third cause of gridlock: the filibuster. The closest the US has ever come to ending the electoral college, and hence setting a precedent for wider reform of the voting system, was in 1968 with the House Joint Resolution 681, carrying the Bayh-Celler amendment. The Resolution received bi-partisan support, President Nixon’s endorsement, and 30 state legislatures (out of the 38 needed, as per Article V) promised that they would ratify it.
When introduced, a handful of Republican and Democratic senators from Southern states, fearing a loss of influence, filibustered it. The initiative could not receive the then-required 75 votes to cloture the debate and move to a vote, and so the amendment was dropped in order for the Senate to attend to other matters.
The filibuster has gone through substantial reform over the years. Since 1975, only 60 votes are needed to cloture a debate, except when it comes to changing the Senate rules (Standing Rule 22 and Article I, Section 5 of the US Constitution). Nevertheless, the filibuster has also been used more frequently, thanks to the two-track system put in place, in 1970, which ensured a division of work in the Senate proceedings: one debate being filibustered does not put to a halt all the Senate’s work.
The current Democratic majority in the Senate does not seem to favor another filibuster reform, Bernie Sanders being one of many Democratic senators to oppose getting rid of it. Most importantly, the filibuster will always be defended by senators from smaller states, which are disproportionately represented in the US Senate, as it is a means through which the minority can prevent the passing of legislation supported by the majority.
The current status quo on the voting system and the filibuster leads to the sort of back-room deals and concessions, generously framed as “bi-partisanship.” But those same limits put on an administration’s ability to pass the legislations it ran on, progressively diminishes the trust the public places in its government. This distrust gives ground to the rhetoric of demagogues, promising to ‘drain the swamp in Washington once and for all.’
This is the American Catch-22: the gridlock in Washington can only be addressed with changes to the electoral system, but changes to the electoral system cannot happen with the current gridlock. In Heller’s novel, the cycle is broken by an elaborate ploy, involving Orr getting shot over the Mediterranean Sea only to escape to Sweden. In the US, the cycle produces resentment and populism that in turn fuel the need to come back to normality and the status quo. For now, it seems that the tyranny of the minority, maintained by the US Constitution, has stuck the country in a perpetual Catch-22.