America is at a crossroads. The pandemic combined with deep political polarization has led Americans to question the efficacy and value of our governmental institutions. Our political parties are in a mortal battle on a variety of issues, and politics has become a zero-sum game, in which each party, when in control of a branch of government, ignores the views of the other party. As of this writing, the U.S. Congress implementing a $1.9 trillion Covid Relief Package which was passed in the Senate through a procedure entitled “reconciliation,” requiring only a majority vote (i.e., the approval of only one political party). One minority Senator demanded that the 628-page Covid relief bill be read in its entirety, wasting endless hours of time, instead of proceeding by unanimous consent (the custom). Both parties have resorted to scorched earth warfare to get bills passed.
One wonders what the Founding Fathers might have thought of all this.
When asked by an inquisitive passerby at the Constitutional Convention, “What have we got a republic or a monarchy?” Benjamin Franklin replied, “A republic… if you can keep it.” This is our challenge today.
On political parties, Thomas Jefferson was quite explicit, “If I could not go to heaven but with a party, I would not go there at all.” James Madison spoke about the “mischiefs of faction.” “When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens” (Federalist No. 10).
The Founders were also very worried about majoritarian control. Madison, in Federalist No. 51, said that “[i]f a majority be united by a common interest, the rights of the minority will be insecure.” Madison was also concerned that “the accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether, hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
The Founders were realists, understanding that a government established by men, rather than angels (under which no government would be necessary), would need to find a way to function effectively. They came up with checks and balances as the solution. “Ambition must be made to counteract ambition,” and that “in framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself” (Madison, Federalist No. 51).
The Influence of Parties
In today’s political maelstrom, one senses that the government appears to be dysfunctional, and is not controlling itself, with the conflict deriving not from the branches competing with each other, but from the influence of political parties within the branches. If the House, Senate, and Presidency line up on an issue, following only one party’s view, then the balancing envisioned by the Founders does not work. The problem of the outsized influence of political parties has been a phenomenon irrespective of the party in power. Also there needs to be a balancing between the various branches; George Washington said that the Framers created the Senate to “cool” down House legislation, just as a saucer was used to cool hot tea. This cooling function doesn’t work very well when political parties determine the interaction of the two houses of Congress.
Our basic institutions and standards have come under scrutiny and criticism. A few examples:
The standard for impeachment and conviction in Article II, Section 4, “high crimes and misdemeanors” is still unclear. Indeed, when the Committee of Eleven debated this provision at the Constitutional Convention, George Mason suggested that the proper standard for impeachment was “maladministration” as well as treason and bribery. James Madison was of the view that “maladministration” was too vague, so the resulting provision as suggested by Mason, and included in the Constitution, was “treason, bribery, or other high crimes and misdemeanors.” Alexander Hamilton was of the view (Federalist No. 65) that impeachment was directed to address “offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of the public trust,” and that these matters “are of a nature which may with peculiar propriety be denominated POLITICAL as they relate chiefly to injuries done immediately to the society itself.” With prescient insight, Hamilton added that the determination in an impeachment proceeding “will connect itself to pre-existing factions… and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence and guilt” (Federalist No. 65).
This resonates in terms of our recent experience with the two impeachments, and Senate trials of a President, and of the same President when out of office. Our recent experience with impeachment has opened our eyes to the fact that, as Hamilton predicted, the matter would be determined by politics. President Gerald Ford was not far off the mark when he said that impeachable offenses are “whatever a majority of the House of Representatives considers them to be at a moment in history.” We saw this clearly in the impeachment by the House on pure party majority lines in 2020, and that the only factor that prevented the conviction of the former President in February 2021 was the high political bar (a 2/3 vote of the Senate). We also witnessed the anomaly of the U.S. Senate deciding (on party lines and without solid precedent) that it was constitutional to hold an impeachment trial of a former President. Politics intervened and the wishes of the political parties predominated.
The Electoral College
The Electoral College is widely misunderstood, especially because of the anomaly that a candidate can win the Presidency by winning the Electoral College but losing the popular vote. There have been calls for the replacement of the Electoral College by a direct national popular vote, or, since amending the Constitution would prove too difficult, through implementing the National Popular Vote Compact, which provides that the candidate who wins the national popular vote will automatically receive all of the electoral votes in each state.
The Electoral College was established by the Founding Fathers to prevent the people from directly electing the President. In order to avoid “tumult and disorder,” the Founders wanted the popular vote to be filtered through “electors,” a “small number of persons, selected by their fellow-citizens from the general mass, [who] will be most likely to possess the information and discernment requisite to such complicated investigations” (Hamilton, Federalist No. 68). That is to say, the ordinary people were not capable of making the choice directly through their votes. Nowadays, electors are selected by their respective political parties, and have no discretion to make independent judgments as to who they wish to choose; they must cast their electoral votes for the candidate to whom they are pledged. Indeed, it is settled law as a result of the Chiafolo and Baca Supreme Court cases that “faithless electors,” who vote against their pledged candidates can be fined or removed. Political parties decide the elections, not the electors themselves, as originally envisioned by the Founding Fathers.
To the point about taking power away from the people, and noting not only the way the Electoral College deprived the people of a direct popular vote (coupled with the fact that the Senate was originally elected by the State legislatures and not by the people directly; which was changed by the 17th Amendment), Jeremy Belknap, a contemporary of the Founders, stated: “Let it stand as a principle that government originates from the people; but let the people be taught…that they are not able to govern themselves.” The Founding Fathers were not great fans of pure democracy but conceded that the source of government power was the people (“We The People”) and the consent of the governed. The Founders created political institutions like the Presidency and the U.S. Senate that were insulated from the people.
The Filibuster and Cloture in the Senate
These allow Senators to place a hold on legislation, with the hold removed (via a Cloture Vote) only by a 3/5 vote (or 60 votes) in the Senate. In the past, to stop a bill from proceeding, Senators would hold the floor for hours by reading the Bible and newspapers (reminiscent of Jimmy Stewart in the film “Mr. Smith Goes to Washington,” literally holding the Senate floor until he faints from exhaustion to prevent a bill from passing). This is a rule which used to provide for a required 3/5 vote on Presidential nominees (under Advice and Consent) as well as for bills. The rule was first changed to remove the 3/5 requirement from Senate votes for nominees other than Supreme Court justices, and then was removed from Senate votes for Supreme Court justices as well – meaning that all such votes in the Senate, other than for bills, would henceforth require only a majority vote. What remains now is only the 60-vote requirement for bills – and Senators no longer have to hold the floor for hours to maintain the filibuster; they can merely put a hold on a bill, and the bill will be put aside unless the required 60 Senate votes remove the hold.
The purpose of the filibuster and cloture was to foster compromise. The majority party in the Senate now is clamoring for the elimination of the filibuster because the minority party refused to agree to the Covid relief package. The “reconciliation” maneuver avoided a showdown on the filibuster for the time being. However, the issue of the filibuster will likely come to the forefront again in the battle over the $15 minimum wage, which the Senate Parliamentarian ruled could not be passed via “reconciliation.” There is now intense political pressure within the majority party in the Senate to reinstate the in-person filibuster, which would make the filibuster much more difficult to sustain, or to eliminate the filibuster completely (which, as a rule change, can be done by simple majority vote). For now, eliminating the filibuster is a non-starter, because one senator has opposed this move. An instrument of compromise between the parties is being challenged by the forces advocating for one-party government. Eliminating the filibuster would, in effect, end bipartisan compromise.
There are many other points of disagreement between the political parties, including with respect to voting rights, which are raging throughout the courts nationally (including the recent Brnovich case in the U.S. Supreme Court regarding voting procedures in Arizona); redistricting (whether redistricting should be non-partisan); and with respect to the power and influence of the U.S. Supreme Court (the one branch not elected by the people, but with enormous impact on the nation). On all of these issues, the impact of political parties is enormous.
The Spirit of Compromise and Civility
The Founders at the Constitutional Convention had little choice but to compromise on a number of major items, such as the way in which Americans would be represented in the two houses of Congress. There have been other major compromises throughout our history.
We seem to have lost the spirit of compromise, and the triumph of one political party over another has become the highest value.
There is also a need for civility in discourse. To avoid chaos, we must act with respect toward one another, even when we have different political views. Our political discourse in an age of social media has become supercharged and overheated, and we need to tone down our differences and work together to achieve what is good for all Americans. This requires the collaboration of all branches of government, and of all of our leaders from both parties. Our leaders must focus on benefiting the nation as a whole, and not on whether their respective political parties will win the next election or score the next political victory. The pandemic and the chaos of January 6th have taught us an important lesson: we must find a way to resolve disputes without rancor.
To return to Ben Franklin, the only way we will “keep” our Republic is by finding a way to work out our differences thinking only of the nation, and not just about partisan political differences. We have kept our Republic until now, despite all of the complexities the Founding Fathers incorporated into our political system. We can achieve a bright future only by working together, and through political compromise.
Mark Meirowitz, Ph.D., is a professor at the State University of New York Maritime College.