There’s nothing hypocritical about calling out the tyranny of the minority

Benjamin Harrison. Photo (cc) 1998 by Monroedb1. Painting by T.C. Steele.

I recently sketched out some ideas for how the Constitution could be rewritten in order to get ourselves out of a dilemma that’s become a crisis — rule by a shrinking minority of voters, grounded in the reality that our smallest states have disproportionate power in the Electoral College and the Senate.

The most immediate result is that we now have a Supreme Court with three members who were chosen by a president who lost the popular vote and confirmed by Republican senators who represented far fewer Americans than the Democrats who voted against them. If that’s not a crisis of legitimacy, I don’t know what is.

After I wrote that post, the feedback I got on Twitter was partly favorable, partly unfavorable. I think the most substantive criticism is that I’m being hypocritical — that I wouldn’t care if the situation were reversed. I’ll plead guilty to one small part of that argument: I’m thinking that the time may have come to trim the Supreme Court’s immense powers, and that’s something that didn’t bother me when it was issuing landmark decisions on reproductive rights and same-sex marriage. (Then again, more rights shouldn’t be controversial since no one is being forced to avail themselves of those rights.)

But for the larger point I was trying to make? No, no hypocrisy. And that’s because the situation we find ourselves in is unprecedented, at least not since the Gilded Age. I recall sitting in the green room a few weeks before Election Day in 2000, waiting to go on “Beat the Press,” when one of the other panelists, Tom Fiedler, started talking about the possibility that the popular-vote winner might lose in the Electoral College. Impossible, I replied. These things have a way of working themselves out. After all, it had been 112 years since Benjamin Harrison, a Republican, had been installed as president despite losing the popular vote to Democrat Grover Cleveland. It wasn’t going to happen again.

Well, we all know how the 2000 election unfolded. George W. Bush became  president thanks to the Electoral College, even though Al Gore won the popular vote. But that seemed like an outlier, and we were all far more riveted by the shenanigans in Florida than we were by the undemocratic nature of Bush’s victory. The belief that Bush stole Florida overshadowed the Electoral College issue.

What drove the Electoral College to the forefront, of course, was the 2016 election, which Hillary Clinton won by nearly 3 million votes. Thanks to the way the vote broke down geographically, Donald Trump won the Electoral College. In 2020, Joe Biden won by 7 million votes — a landslide by modern standards — yet still came uncomfortably close to losing in the Electoral College. It’s not at all inconceivable that the next Republican to win the Electoral College will also lose the popular vote by 8 million to 10 million people.

The Senate is, if anything, even less democratic. Tiny Wyoming (581,000 residents) gets two senators, who are virtually guaranteed of being Republican. California’s 39 million residents are also represented by just two senators, both Democrats. Yet at least in the post-New Deal era, the situation in the Senate was muddled enough that such geographic inequities didn’t really come into play. The Senate was Democratic for virtually all of that time, but the racist Southern Democrats really made the Senate a three-party body. Northern Democrats often worked with liberal and moderate Republicans (yes, there really were some). Coalition-building was possible. The filibuster was rarely used.

In today’s New York Times, Jamelle Bouie, whose writings on the Constitution and the state of democracy are indispensable, has this to say:

As for the constitutional crisis, it is arguably already here. Both the insurrection and the partisan lawmaking of the Supreme Court have thrown those counter-majoritarian features of the American system into sharp relief. They’ve raised hard questions about the strength and legitimacy of institutions that allow minority rule — and allow it to endure. It is a crisis when the fundamental rights of hundreds of millions of Americans are functionally overturned by an unelected tribunal whose pivotal members owe their seats to a president who won office through the mechanism of the Electoral College, having lost the majority of voters in both of his election campaigns.

Our current system favors geography over people and the interests of the minority over those of the majority. This has nothing to do with minority rights. A properly functioning liberal democracy is ruled by the majority with certain rights guaranteed so that government doesn’t deteriorate into a tyranny of the majority. Like, you know, not being forced to quarter troops in your home in peacetime. Or the right to a speedy and public trial. Or the right to exercise control over your own body, or marry the partner of your choosing.

I truly believe that when something can’t go on forever, then it won’t. At some point, the majority is going to rise up and demand change. Imagine what would happen if the next Republican presidential candidate loses the popular vote by 10 million yet wins the Electoral College with the help of dirty tricks in a few Republican states — dirty tricks that are being enshrined into law even as we speak. You can say that Democratic leaders won’t do anything, or won’t do enough. But you know what? It’s going to be taken out of their hands.

I wish you all a great Independence Day — and I look forward to a day when we can all reclaim our independence.

Gomez-mania and its limits

Gabriel Gomez working the crowd
Gabriel Gomez meeting and greeting

Watching TV and following Twitter last night, I saw a lot of praise for Gabriel Gomez’s running a credible campaign and doing better than expected.

Really? Gomez lost by 10 points. Scott Brown lost by eight last November. Although Gomez didn’t have to contend with President Obama being on the ballot, as Brown did, a low turnout was supposed to help Gomez — and he certainly got that.

My guess is that Gomez got the bare minimum of votes available to virtually any Republican and failed to build on it at all. The fact is that he lost by a substantial margin to Ed Markey, an uninspiring Democratic candidate. (A fading Brown did better against Elizabeth Warren, a rock star compared to Markey.) The extent of Gomez’s defeat was right in line with most of the polls, so he most definitely did not do better than expected.

I doubt any Republican can win federal office in Massachusetts right now because congressional Republicans are so unpopular here. But Gomez didn’t help himself by claiming to be a moderate, taking clear stands against abortion rights and gun control, and then ludicrously trying to convince voters that he’d done no such thing.

Sorry, folks. A star wasn’t born last night.

Photo (cc) by Mark Sardella and published under a Creative Commons license. Some rights reserved.

Dan Winslow brings his campaign to Danvers

Winslow in Danvers

U.S. Senate candidate Dan Winslow calls himself “the Dan with a plan.” I am the Dan without a plan. But I do follow Winslow on Twitter. So when I saw that he was heading for Danvers Square, I walked the block and a half from my house to see if we could connect.

Winslow, one of three Republicans running in the primary on Tuesday, was greeting voters and meeting supporters at New Brothers. We’ve conversed so much on Twitter that it was hard to remember that this was actually our first meeting.

Winslow is as ebullient in person as he is on social media, touting his endorsement by the Springfield Republican as representing a “clean sweep” of Massachusetts newspapers. (Most notably, Winslow has been endorsed by both the Boston Globe and the Boston Herald.)

Still, the polls suggest that Winslow — a state representative, former judge and a top adviser to Mitt Romney when he was governor — is running third, behind former U.S. attorney Michael Sullivan and venture capitalist Gabriel Gomez. The winner will square off against one of two Democratic congressmen, Ed Markey or Stephen Lynch, in a special election to be held in June.

Winslow’s hopes would appear to rest on low turnout (likely to be especially low given how little attention the campaign has received following the Boston Marathon bombing) and his get-out-the-vote effort. His profile as a fiscally conservative, socially moderate Republican is one that has traditionally appealed to independent voters in Massachusetts. But he’s not well known, and there are only a few days to go.

Photo (cc) by Dan Kennedy. Some rights reserved.

Michael Sullivan’s tired, uninspired debate performance

Dan Winslow and Gabriel Gomez at least seemed interesting in tonight’s Republican Senate debate, sponsored by WBZ and the Boston Globe. But Michael Sullivan, who’s way ahead in some polls, came across as old and cranky, a garden-variety right-winger who couldn’t even bring himself to support the gun-control compromise announced in Washington today.

It seems to me that either Winslow or Gomez could at least make the Democratic nominee — Steve Lynch or, more likely, Ed Markey — break a sweat. If either of them gets a chance, that is.

And, oh, the Massachusetts Republican Party has come to this: both Sullivan and Gomez attacked Winslow for being part of a governor’s team that raised taxes and passed Romneycare. If Willard Mitt Romney is now too liberal for Republican primary voters, then their candidate is headed off an electoral cliff.

Lynch staggers under weight of chip on his shoulder

I thought Ed Markey and Steve Lynch both acquitted themselves fairly well in the Democratic Senate debate last night sponsored by the Boston Herald and UMass Lowell. (Herald story here; Boston Globe story here.)

What really struck me, though, was their closing statements, in which they both emphasized their working-class roots. Lynch came off as bitter and resentful. Markey told a lovely, uplifting story about the Dominican immigrants who now live in the Lawrence home where his father grew up.

The contrast turned an otherwise-OK performance for Lynch into a lost opportunity. I’m surprised Lynch can walk upright with that massive chip on his shoulder.

The Globe’s fire-breathing endorsement of Warren

I’m often frustrated with Boston Globe editorials because they avoid strong stands and take both sides of every issue. So I thought it was interesting that its endorsement of Elizabeth Warren was so unstinting, with little good to say about Sen. Scott Brown.

After recounting Brown’s unproven assertions that Warren took professional advantage of her undocumented Native American ancestry, the editorial includes this very tough line: “By campaigning on his personality, rather than his abilities, Brown seems to be bucking for his own form of affirmative action.”

No question the Globe was going to endorse Warren. But I wonder if it might have been a little more nuanced if Brown hadn’t taken a torch to his nice-guy image.

Talking about Wednesday night’s Senate debate

Right after Wednesday night’s third U.S. Senate debate between Republican incumbent Scott Brown and Democratic challenger Elizabeth Warren, UMass Boston political-science professor Maurice Cunningham and I kicked it around in a video for CommonWealth Magazine. Please have a look.

Worst debate ever?

David Gregory

The second Senate debate between Scott Brown and Elizabeth Warren ended a little while ago. And though I thought they both had their moments, with Brown a bit better than he was in the first debate, the entire affair was overwhelmed by the ego-driven, substance-free performance of moderator David Gregory.

He opened with the Native American thing because, you know, we haven’t heard it before. Near the end, he asked if the candidates thought the Red Sox should bring back Bobby Valentine. He preened about Simpson-Bowles like the Beltway insider that he is (Paul Krugman explains). And he turned what should have been a substantive discussion about real issues into a fiasco.

All in all, a miserable performance.

Update: Some smart instant analysis by Adam Reilly of WGBH.

Photo (cc) by Peter Bond and republished under a Creative Commons license. Some rights reserved.

The Brown-Warren race and the ghosts of a 2010 poll

With today’s Boston Globe poll reporting that Democratic challenger Elizabeth Warren leads Sen. Scott Brown by five points, get ready for Brown’s defenders to dredge up an infamous Globe poll from two years ago — the one that showed Attorney General Martha Coakley leading Brown, a Republican, by 15 points.

Globe-bashers like Howie Carr love to point to that earlier poll as a sign of the paper’s liberal bias — and I’ll predict right now that that will be the subject of Carr’s next column in the Boston Herald.

In fact, Globe polls are not Globe polls — they are conducted by the University of New Hampshire Survey Center, a respected, independent polling operation.

So what went wrong in 2010? My theory: Nothing. The story about that earlier poll is protected behind a paywall (I’m a subscriber, so I’ve reread the whole thing). But as you can see from this excerpt, the poll was conducted between Jan. 2 and 6, and the election to fill the U.S. Senate vacancy created by Ted Kennedy’s death was held on Jan. 19.

Thus it’s likely that the poll was accurate when it was conducted. People were just getting back to their normal routines coming out of the holidays. The race broke very late for Brown. By the time the story was published, on Jan. 10, the race was already trending away from Coakley, and within days, other polls were reflecting that.

What does that mean for Brown now?

First, the margin of error in the new poll, which shows Warren with a 43 percent to 38 percent lead, is 4.4 percent. In other words, if the election were held tomorrow, Brown could beat Warren by several points without calling the validity of the poll into question. The race is still essentially tied.

Second, this is not a low-turnout special election, and as the Globe story notes, Brown faces some harsh realities. By wide margins, people like Brown and like the job he’s doing — but they are increasingly leaning toward Warren because of the enormous enthusiasm among Massachusetts voters for President Obama. I suspect you would not be able to get Brown to utter the words “Mitt Romney” these days even if he were being waterboarded.

Third and most important: It’s still early. No, it’s not as early as it was during the pre-Labor Day period, when you could argue that most people weren’t paying attention. But it’s early enough for things to change dramatically if Warren stumbles badly. That’s why I think Brown is making a mistake by putting a torch to his nice-guy image with his continued attacks on Warren’s claim that she’s part-Native American.

David Bernstein of The Phoenix offers some further analysis of the Globe poll. And Nate “The Great” Silver of the New York Times takes a deep look at conservative claims of liberal bias in polling — and buries the assertion in an avalanche of well-marshaled data.

Illustration (cc) by DonkeyHotey and republished under a Creative Commons license. Some rights reserved.

Warren needs a better answer on asbestos case

Coming out of Thursday night’s WBZ-TV (Channel 4) debate between Republican senator Scott Brown and his Democratic rival, Elizabeth Warren, I thought the issue that could have the most resonance was Brown’s accusation that Warren profited from a legal case that harmed victims of asbestos exposure. Warren didn’t handle the question well, and the matter was left hanging.

Boston Globe reporter Noah Bierman wrote about the case in May. It is convoluted, to say the least. In essence, though, Warren was paid $212,000 by Travelers Insurance to argue that the insurer should be immune from future asbestos lawsuits in return for setting up a $500 million trust fund to compensate victims. The liability belonged to Travelers because Johns-Manville, the company that actually manufactured the asbestos, had gone bankrupt.

Later, after Warren no longer had anything to do with the case, another court ruled that Travelers did not have to pay out the $500 million. So the victims got nothing. Warren told the Globe:

My heart goes out to the victims of this terrible, terrible disaster. It’s heart-wrenching that there are new victims every year…. I think they should be compensated. That’s it for me. That’s what this is all about.

She added that the principle she was fighting for — a provision in bankruptcy law that would allow the establishment of trust funds for victims in return for no further legal liability — was “a critical tool for making sure that people who’ve been hurt have a fair shot at compensation.”

Brown is scheduled to discuss the asbestos case with reporters later this morning. Warren needs a better answer.

Overall, I thought Warren came across well — focused, substantive and calm, if a bit repetitive. Brown was snide and personal. Moderator Jon Keller began by inviting Brown to comment on Warren’s character, and Brown chose to go all-in on Warren’s claim that she’s part Native American. Senator, there are people who will do that for you — and have been doing that for you.

Here is my Northeastern colleague Alan Schroeder, writing for the Huffington Post:

The opening debate between Elizabeth Warren and Scott Brown … at times felt like the classroom dynamic between an earnest, soft-spoken high school English teacher and the defiant jock who plants himself in the back row and makes sour faces until the bell rings. Although the teacher never quite subdued her student, neither did he manage to get the better of her.

And how good a moderator is my friend Keller? Other than keeping the conversation moving, you barely knew he was there. In other words, a first-rate job.

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