On his blog (the link is to the first in a series of three; read them all), the redoubtable Hendrik Hertzberg refers us to a 224-year-old essay, Alexander Hamilton's Federalist No. 22, and recommends it for the times. Hamilton:
To give a minority a negative upon the majority (which is always the case where more than a majority is requisite for a decision) is, in its tendency, to subject the sense of the greater number to that of the lesser number. . . . A sixtieth part of the Union, which is about the proportion of Delaware and Rhode Island, has several times been able to oppose an entire bar to its operations. This is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory. The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation in which the goodness or badness, the weakness or strength, of its government is of the greatest importance, there is commonly a necessity for action. The public business must in some way or other go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority in order that something may be done must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of voters, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy.
Now, Hamilton was writing against the Articles of Confederation, and in favor of the proposed new Constitution, which alas did not cure the deficiency of which he was speaking. That each state, no matter its population, received two votes in the US Senate has the practical effect of permitting a minority "of the Union . . . to oppose an entire bar" to the operations of government. As Hertzberg observes, Hamilton hated--hated--the inequality of representation in the Senate. Can you imagine what he would have made of Mitch McConnell's senate, in which a supermajority is required to pass any law? First, Wyoming gets the same representation as California. And once Wyoming's two senators are against something, it takes only 39 more, of the remaining 98, to bury that something forever. Since Alaska has two, it needs just 37 of the remaining 96, and we have yet to hear from Nebraska, Kansas, Idaho, Utah. . . .
The twenty least populous states have less than ten per cent of the nation's population, so the sixty senators needed to break a filibuster could represent ninety per cent of the people: the will of 90 thwarted by 10.
Happily for his everlasting repose, Hamilton could not have predicted the rules and customs of the modern Senate. Nevertheless he was prescient about the poisonous consequences. In order that something will be done rather than nothing, a majority will be compelled to seek "accommodations" with a "pertinacious minority" and "thus the sense of the smaller number will overrule that of the greater and give a tone to the national proceedings." Think: health care reform. There were more than fifty votes in the Senate for the "public option" but that hardly mattered. The majority, in order that something be done, finally dropped its sense of how best to meet the challenge and instead endeavored to "conform to the views of the minority." Accountability in government is lost because, so long as there is a pertinacious minority, no one can have their program adopted and the results judged by the voters.
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