Considering the Democracy Agenda legislative program requires that we confront a premise that keeps most scholars — indeed, most Americans — feeling helpless:
“Unless we amend the Constitution, nothing structural can change.”
This premise has become so entrenched that even some of the best historians repeat it as if it were a constitutional fact.
If the premise were true, then yes — our democracy would be permanently deformed by the power of political factions and coalitions (“Favored Political Minorities”) who hold power disproportionate to their population and their numbers in Congress and the Electoral College, with the Supreme Court acting as the ultimate guardian of Favored Political Minorities.
But that premise is false, and it hands a permanent veto to Favored Political Minorities.
Repairing American democracy does not require amending the Constitution. Congress already has the power it needs.
THE DEMOCRACY AGENDA LEGISLATIVE PROGRAM
1. Structural Advantages Held by the Less Populated States.
Less populous states currently hold disproportionate power in the Senate, in the House, and in the Electoral College. Factions which control those states have disproportionate power in the national government.
In the House:
The Permanent Apportionment Act of 1929 capping the size of the House gives the less populated states power in the House disproportionate to their population.
In the Senate:
The constitutional mandate that each state have two Senators gives less populous states disproportionate power in the Senate. This is the only structural advantage that cannot be eliminated by Congressional legislation.
In the Electoral College:
Since the number of each state’s electors is the sum of the number of the state’s Representatives and Senators, the factions controlling small states also have disproportionate power in the Electoral College.
Legislative Remedies To Balance Power with Population
In the House: Increase the size of the House.
Each state would be entitled to one Representative based upon the ratio of its population as determined by each decennial census to the population of the least populous state.
In the Senate: Add DC and Puerto Rico as States
Millions of American citizens presently lack the same representation in the national government enjoyed by citizens of the States. If the people of D.C. and Puerto Rico choose statehood, Congress should admit them.
In the Electoral College:
Eliminating the unbalanced power of the less populous states in the House automatically and materially balances the power of the small states in the Electoral College.
Constitutional Sources of Congressional Power
• Repeal of Permanent Apportionment Act of 1929 and New Apportionment Formula: Paragraph 3 of Section 2 of Article I
• Adding States: Section 3 of Article IV
• Impact on Electoral College: Paragraph 2 of Section 1 of Article II
2. Structural Advantages Arising from Vote Denial, Vote Suppression, and Vote Dilution
From the beginning, Favored Political Minorities gained disproportionate power through:
— laws and practices that deny or abridge the right to vote of groups outside those factions and
— gerrymandering that dilutes the voting power of Americans outside of those Coalitions.
Legislative Remedies Eliminating Vote Denial, Vote Suppression, and Vote Dilution:
Congressional Finding:
Voting is a fundamental right and privilege (within the meaning of the privileges or immunities clause of Section I of the 14th Amendment) of every U.S. citizen.
Vote Denial and Vote Suppression:
• A National Voting Rights Act would impose uniform federal voting standards and rules for all levels of state and Federal elections.
• These standards and rules should make it easy for all citizens over the age of 18 to vote, to make it easy to count and verify the results, and to protect the voters from foreign and partisan interference.
• These standards and rules should include early voting, mail-in voting, designating voting days for Presidential and biennial Congressional elections as National holidays, and enforcement (and non-interference) by the Department of Justice.
• Congress should provide adequate funding for states to purchase equipment and software to implement the required voting procedures.
Vote Dilution:
• Congress should provide adequate funding for states to purchase equipment and software to implement the required voting procedures.
Constitutional Sources of Congressional Power
• Congressional Elections: Article I, Section 4
• State and Presidential Elections:
— The privileges or immunities and equal protection clauses of Section 1 of the 14th Amendment— Section 5 of the 14th Amendment
— Section 2 of the 15th Amendment
— The Republican Form of Government Clause of Section 4 of Article IV
Legislation to Help Guarantee Compliance with the National Voting Rights Act:
A National Voting Rights Act should define the conduct that Congress finds constitutes a denial or abridgement of a citizen’s right to vote and establish a process for enforcing the never used penalty of Section 2 of the 14th Amendment: the loss of Representatives for a State that materially abridges the right of its citizens to vote.
3. Reduce the Structural and Corrupting Power of Money in Elections
Congress should reenact and strengthen campaign-finance legislation, including disclosure and restrictions that the Supreme Court’s 2010 Citizens United opinion presently prevents Congress from enforcing. If the Court invokes Citizens United to invalidate that legislation, Congress must confront a larger question: Does the Supreme Court have the final word in interpreting the Constitution?
4. The Filibuster
Assuming that a majority of Representatives and Senators support the Democracy Agenda, the last remaining legislative barrier to enactment of this program would be the filibuster. The filibuster is not in the Constitution. It is a Senate rule. A Senate majority can change it. It should not be permitted to prevent enactment of legislation designed to restore majority rule itself. In a healthy system, majority rule is not the threat — minority rule is.
5. Congress’s Power to Deal with Supreme Court Resistance to the Democracy Agenda
The Supreme Court has often interpreted the Constitution in ways that protected structural advantages held by Favored Minority Coalitions. The present Court may similarly attempt to invalidate, weaken or delay implementation of portions of the Democracy Agenda. Congress should prepare for that possibility when it enacts the Agenda — not after judicial resistance has consumed the limited time in which Congress can act. Congress should not treat existing Supreme Court interpretations as foreclosing legislation that Congress independently concludes is permitted by the Constitution.
An Escalating Response-Build it Beforehand
First Rung:
A. Strengthen the Democracy Agenda Legislation Against Judicial Attack
Congress should expressly identify the constitutional powers supporting each part of the Democracy Agenda, make appropriate factual findings, state Congress’s independent interpretation of the constitutional provisions it is enforcing, and define the rights, standards, remedies, and rules of statutory interpretation necessary to implement its purposes.
B. Prevent Judicial Delay from Becoming a Veto
The Democracy Agenda should establish expedited procedures for constitutional challenges, including appropriate three-judge or specialized Article III courts, strict litigation timetables, severability, expedited appeals, and other procedures designed to obtain final decisions before elections or changes in political control make judicial relief meaningless.
C. Prevent Judicial Evisceration of Congressional Legislation
Congress should, where practicable, establish alternative definitions, standards, remedies and enforcement mechanisms that become applicable if courts reject or materially narrow Congress’s preferred provisions.
D. Establish Supreme Court Ethics and Recusal Requirements
Congress should enact binding ethics, disclosure, and recusal requirements for the Supreme Court, together with effective procedures for enforcement, along the lines of legislation proposed by Senator Sheldon Whitehouse.
Second Rung:
Regulate Supreme Court Jurisdiction if the Court Prevents Timely Implementation of the Democracy Agenda
The Democracy Agenda should provide that specified jurisdictional exceptions become effective if the Supreme Court invalidates a core provision of the Agenda, prevents its implementation through a stay or injunction, materially defeats its operation through statutory or constitutional interpretation, or delays final resolution beyond deadlines established by Congress.
Upon the occurrence of a specified trigger, Congress’s pre-enacted Article III protections should automatically take effect. These should include withdrawal or limitation of Supreme Court appellate jurisdiction over the affected provision under the Exceptions Clause and transfer of final judicial review to a designated Article III court or tribunal. The legislation should establish in advance the courts, jurisdiction, procedures, and method for determining that a trigger has occurred, so that no further Act of Congress is required to put the protections into effect.
Third Rung:
Reconfigure the Supreme Court if Jurisdictional Measures Prove Insufficient
Congress should preserve broader structural reform of the Supreme Court as the ultimate constitutional safeguard. Reconfiguration could include increasing or otherwise altering the structure or composition of the Court.
This step should be considered if, after Congress has enacted the Democracy Agenda with its protections and exercised its Article III powers where necessary, the Supreme Court continues to prevent Congress from implementing core provisions of the Democracy Agenda through invalidation, evisceration, delay, or resistance to Congress’s lawful regulation of federal jurisdiction.
The Governing Principle
Judicial review does not mean judicial supremacy. Every Senator and Representative swears an oath to support the Constitution—not the Supreme Court's interpretation of it. Congress has previously rejected the Court's interpretation of Congress's own constitutional powers and legislated according to its independent understanding of the Constitution. In 1862, Act CXI prohibited slavery in all United States territories, directly repudiating Dred Scott's holding that Congress lacked constitutional power to prohibit slavery in the territories. In 1937, after the Court invalidated Congress's first Municipal Bankruptcy Act, Congress exercised its constitutional judgment again and enacted a new Municipal Bankruptcy Act; the Court upheld it the following year in United States v. Bekins.
Congress should follow the same principle in enacting and defending the Democracy Agenda. Where the Supreme Court has interpreted the Constitution to restrict Congress's ability to protect representative government, Congress should not assume that the Court's interpretation ends the constitutional debate. Congress should exercise its own constitutional judgment, enact the legislation it concludes the Constitution authorizes, and defend that judgment against judicial challenge.
Constitutional Sources of Congressional Power
— Article I, Section 1: vests the legislative powers granted by the Constitution in Congress.
— Article I, Section 5: gives each House authority over its own rules and proceedings.
— Article I, Section 8: the Necessary and Proper clause authorizes Congress to enact legislation necessary and proper for carrying into execution the powers vested by the Constitution in the Government of the United States.
— Article III: gives Congress substantial authority over the structure and jurisdiction of the federal judiciary and provides that the Supreme Court’s appellate jurisdiction is subject to such exceptions and regulations as Congress shall make.
— Article VI: requires Senators and Representatives to swear an oath to support the Constitution.
— The Reconstruction Amendments: expressly give Congress power, and assign it the responsibility, to enforce their guarantees through appropriate legislation.
CONCLUSION
The core reforms of the Democracy Agenda do not require a constitutional amendment. The Constitution that created many of the structural advantages exploited by Favored Minority Coalitions also gives Congress enormous power to reduce them. The obstacle is not primarily constitutional authority. It is Congress's failure to recognize and exercise the authority it already possesses. The Democracy Agenda asks Congress to use it.
How did we get here?
The four film episodes on this website tell the story.