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Majority rules? This Democrat wants to talk about anti-majoritarian bias

Rep. Sean Casten has some modest proposals

“What are the institutions in our country that are consistently blocking the will of the majority of the American people?” asks Rep. Sean Casten, D-Ill. “The Senate, the Electoral College and the Supreme Court.”
“What are the institutions in our country that are consistently blocking the will of the majority of the American people?” asks Rep. Sean Casten, D-Ill. “The Senate, the Electoral College and the Supreme Court.” (Bill Clark/CQ Roll Call)

Sean Casten thinks the federal government is broken.

This is, to put it mildly, not a controversial position to take. Only 20 percent of the public told the Pew Research Center last year that they trust Washington to do what’s right just about always or most of the time. The federal government tied for second-to-last in Gallup’s poll of how the public sees various sectors of the economy, coming up even with the pharmaceutical industry but ahead of oil and gas. Even lawyers and airlines fared better.

As a member of Congress, though, Casten thinks he can try to fix things. So the Illinois Democrat is introducing two bills and a constitutional amendment that would radically change his workplace — he wants to expand the House and Senate, reshape the Electoral College and curtail the jurisdiction of the Supreme Court.

Whenever he goes back to his district, Casten said, voters ask him why broadly popular proposals, like universal background checks on gun purchases, never seem to pass. Often, they blame corruption or gerrymandering for preventing the federal government from working as intended. But the way Casten sees it, things are actually working as designed, but the design is seriously flawed.

“What are the institutions in our country that are consistently blocking the will of the majority of the American people?” Casten said. “The answer is the Senate, the Electoral College and the Supreme Court.”

While government reform proposals are fairly common — lawmakers have introduced 20 proposals for amending the Constitution so far this year — Casten’s staff believes he is the first, or at least the first in living memory, to propose these kinds of structural overhauls.

Casten admitted that he “never took a poli sci class,” in college, but his bills hit upon what academics call the Constitution’s counter-majoritarian difficulty or anti-majoritarian bias. Article III of the Constitution vests the judicial power in unelected judges who are appointed for life, and the Supreme Court in Marbury v. Madison decided that power includes its ability to strike down laws.

Similarly, the Senate has a small state bias — California has 39 million people, roughly the same as the smallest 21 states combined, but only two senators like the rest. And that bias shows up in the Electoral College, which gives each state the same number of electors as its seats in Congress.

In recent years, these anti-democratic aspects of the federal government have also been mostly anti-Democratic: Democrats won the popular vote while losing the Electoral College in 2016 and 2000; dozens of popular Democratic proposals have passed the House only to die in the Senate; and conservatives have commanded a majority on the Supreme Court since Clarence Thomas replaced Thurgood Marshall in 1991, resulting in decisions that have appalled Democrats, with last year’s overturning of Roe v. Wade being the most dramatic example.

So what’s a concerned lawmaker to do?

Casten is a pragmatic member of the centrist New Democrats, not a big-ideas progressive. But the third-term congressman is aiming high. 

His first bill would increase the number of representatives in the House. Specifically, it would set the size of the House by dividing the total population of the nation by the population of the smallest state and then rounding to the nearest odd, whole number. Based on the 2020 Census, the bill would have added 138 seats ahead of the 2022 election, increasing the House to 573 total seats.

The House hasn’t added any seats since 1911, Casten noted. Today, most House members represent roughly 700,000 constituents — more than national legislators in most other countries. That makes serving them harder, Casten said.

The proposal would also automatically increase the size of the Electoral College, and would add more members (and electors) to the more populous states. That would make it less likely that the results of the electoral vote for president would differ from the popular vote, Casten argued, and in a way that wouldn’t require a constitutional amendment.

Casten’s constitutional amendment would increase the size of the Senate by adding 12 at-large senators elected by ranked choice voting. It would also add 12 electors to the electoral college who’d vote for the winner of the national popular vote.

“The Senate right now has no meaningful block of senators who are forced to be responsive to the public will,” said Casten.

Casten’s proposal would subvert the Senate’s original purpose of representing the states, but that’s the point. The Senate is archaic: It was created specifically to provide a check on the popular will reflected in the directly-elected House, and the fact that every state got two senators was the product of a messy political compromise, not some enlightened calculation.

His last bill would curtail the jurisdiction of the Supreme Court and create a new appellate-level court to handle most cases involving the federal government or federal law. That court would create a panel of judges pulled randomly from each of the 12 appellate court circuits, plus a 13th appellate judge selected at random to serve as chief. It would also require a 70 percent supermajority of the panel to invalidate or overturn a congressional act.

The proposal reflects the shift in the Supreme Court’s ideological makeup. For decades, Republicans were far more likely to complain about unelected judges tossing out laws written by democratically elected lawmakers. But conservatives’ successful efforts to ensure that David Souter would be the last Republican-selected Supreme Court justice who’d end up on the bench’s left wing have moved the court’s ideological center far to the right. Now Democrats lament judicial activism.

Casten pointed to a series of unpopular Supreme Court decisions — blocking limits on corporate campaign spending in Citizens United v. FEC, finding an individual right of gun ownership in District of Columbia v. Heller, and striking down parts of the Voting Rights Act in Shelby County v. Holder— that he said ignored not just the will of the people at the time, but also the Constitution and existing judicial precedent.

“If we have the power in Congress to take authority away from somebody who has not exercised that authority appropriately, let’s do it,” Casten said.

“I’m trying to make sure that the judicial branch continues to have the independence to act as a check on the legislative branch,” he added. “But the judicial branch cannot be a way to force minoritarian views that you cannot otherwise get through the legislative branch.”

While these changes would likely benefit Democrats politically, Casten said that’s not his intention. He, after all, used to vote for the likes of George H.W. Bush and Bob Dole. “But over the course of my lifetime, I have watched the Republican Party move from a party that was aspiring to appeal to the views of the majority of the American people, to one that is aspiring to control the minoritarian institutions in our governance,” Casten said.

The odds of any Congress deciding to take on the challenges of tinkering with the Constitution or the balance of powers between the branches are negligible. Casten knows his bills won’t go anywhere anytime soon, but that doesn’t seem to bother him. He said the point is to approach big proposals like these as legs in a lengthy relay race. “Sometimes we move that baton forward because we’ve changed the public conversation and moved the Overton window,” he said.

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