Joe Manchin and John C. Calhoun

The filibuster, faction and concurrent majority

I’ve been meaning to respond to this Jamelle Bouie column since it came out. I happen to agree with Bouie on the filibuster. I agree that the American constitution has enough veto points that we don’t need yet another. I agree that the filibuster’s transformation into a routine supermajority requirement results in unnecessary gridlock, which encourages the usurpation of legislative power by the executive and the courts. And I agree that it allows members of the majority to avoid accountability, pretending to support legislation only because they know it will not pass, thereby encouraging greater partisanship and ideological division.

I want to press a little, though, on the central point of Bouie’s column, which is that James Madison never believed that “bipartisanship” was important, and that when he talked about protecting a “minority” what he meant was a minority economic and/or sectional interest. This is correct; indeed, most prominently he meant the economic interests of the slaveholding class, though in practice his views might just as sensibly have been applied to New England manufacturers. But I think the implications are different for our current political situation from what Bouie imagines.

Bouie thinks this means that there’s no reason rooted in Madison’s thinking to support the filibuster in principle as a mechanism for ensuring that the minority is included in decision making. It’s not just that a defense of propertied interests against “leveling” is illegitimate; it’s that such a defense doesn’t truly require “minority” protection except in conditions of extreme concentration of wealth and power. If we conceive of the American economy as including a broad middle class, and American politics as featuring two large ideological coalitions striving for the allegiance of that middle class, then there is, in an economic or political sense, no permanent division between majority and minority. Rather, there is a spectrum, and the default politics would be a right-wing coalition supported by most of the wealthy, a left-wing coalition supported by most of the poor, with both coalitions tussling for support of the median voter somewhere in that broad middle class.

Is that what American politics looks like though? I don’t think so—indeed, it rarely has. For most of American history, not only before the Civil War but after, our large political parties were at substantially sectional in nature. To a considerable extent they still are, or are once again, though the boundaries of the sections have shifted. But the traditional economic distinctions that have often obtained between the parties have also been to a considerable degree upended. Most poor people still vote for Democrats, but the wealthiest districts in America are now increasingly represented by Democrats, and the average Democratic district is now significantly wealthier than the average Republican one. Moreover, comparing districts makes more sense than comparing individuals, not only because that’s how we vote in this country, but because Americans increasingly live in politically homogenous bubbles dominated by a single party. The dominating partisan divide in America is no longer economic but cultural: rural voters are Republicans and urban voters are Democrats; educated voters tilt toward the Democrats while middle-class voters without a college degree are predominantly Republican.

In consequence, our partisan divides are becoming more deeply entrenched, with fewer swing voters or crossover voters. And to the extent that voters do swing, they will have a hard time swinging the Senate because of the predominance of one or the other party in an increasing percentage of states. In 2018, in a massive Democratic wave year, the Democrats actually lost seats in the Senate because three of their incumbents were in overwhelmingly Republican states: North Dakota, Indiana and Missouri. In 2022, meanwhile, the Democrats look likely to face a Republican tsunami. But because only four of their incumbents are in states with a reasonable possibility of swinging—Georgia, Arizona, Nevada and New Hampshire—their losses are likely to be limited, and their odds of holding the Senate are likely better than their odds of holding the House of Representatives. Then, in 2024, the Democrats are highly likely to lose seats in the Senate even if they manage to retain the Presidency. My point is not just that Senate elections are somewhat insulated from the national mood, and that therefore they already perform their arguably-dubious “cooling function” of protecting Americans from their transitory moods. It’s that they are primarily responsive to the “big sort” that governs American politics, and that the mood within a given section may be wildly at variance with the mood of the country at large.

When most states are reliably Democratic or Republican, we’re back in a world of sectional and factional politics that in certain ways would have been familiar to Madison. In that world, “bipartisanship” means something different from what it means in a world where voters are strung along an ideological spectrum. It means not merely that a measure has broad ideological consensus, but that it has consensus across a chasm of distrust. When such a chasm exists, the importance of crossing it for political legitimacy doesn’t shrink; it grows.

John C. Calhoun’s theory of concurrent majority was designed to protect the distinct interest of slaveholders, but that interest “needed” protection because its interests really were at variance with the interests of the free states (not to speak of the interests of the slaves themselves). Today we see that application as obviously repugnant, but as a theory it has broader applicability. When Canada gave special powers to Quebec, for example, on the grounds that it is a “distinct society,” it was following the logic of concurrent majority. A Canadian majority cannot simply override a Quebecois majority on certain issues that are of particular importance to Quebec. Federal systems generally justify themselves by stressing the need to protect local majorities from being overridden by national ones, but sometimes federalism is inadequate to assure that national decisions are broadly acceptable. The Lebanese constitution, for example, allocates different offices of the central government to the different religious communities—Christian, Sunni Muslim and Shiite Muslim—that divide the country. The purpose is to assure that all these communities are always represented in national decisionmaking—that no majority can completely overrule majorities within any sectarian grouping.

The reason I’m nattering on about this is that if we are back in a situation of profound distrust across what are the equivalents of sectional or sectarian divides, then the theory of concurrent majority starts to have real force again in terms of providing for political legitimacy. It’s not that, as such, bipartisan policy is superior or that there’s something illegitimate about one party ruling until it loses an election. Quite the contrary: requiring any kind of consensus makes government more sclerotic and corrupt. It’s that if the two parties represent consistently different groups of people who profoundly distrust each other and think that what each is trying to do is beggar the other, then a policy really does have to cross that partisan chasm to seem legitimate to both sides.

Are we in that situation today? Well, you tell me. I don’t think we’re as bad as Lebanon yet. But we do seem to be trending that way. And that has implications for how our government can continue to work—and how it can’t.