How American Government is Rigged Against the Democrats

by Douglas J. Amy, Professor Emeritus of Politics at Mount Holyoke College in Massachusetts

Democrats in the United States can be forgiven if they feel very frustrated. For decades they have been trying in vain to pass a number of progressive policies in Washington on issues like global warming, raising the minimum wage, lowering the cost of higher education, rebuilding infrastructure, and assault weapon control. All are policies that have the support of majorities of Americans. The tendency has been to blame opposition politicians like Mitch McConnell and Donald Trump for this lack of progress. But much of the problem is that we have a political system that is rigged against Democrats. For example, a large number of good policies could have passed in the last decade if there were not a filibuster in the Senate, which allows Republicans who represent a minority of American voters, to block them. What follows is a discussion of the various ways that the American political system is biased against the Democrats, and what reforms are needed to change this system to make it fairer and more democratic.

The Senate and the Two-Seats per State Rule

When Democrats think of the problems with the U.S. Senate, they usually think of the filibuster. But there is actually a deeper institutional problem with the Senate that poses a more fundamental problem for Democrats: the two-seats per state rule. The fact that both large and small states both get two senators means that the citizens in small states get many more representatives and much more power in Congress than those in large states. To get a sense of how remarkably unjust this situation is, consider this: the 40 million people who live in the 22 smallest states get 44 senators to represent their views and interests. The 40 million people in California get two. It is possible for citizens from the smallest states that represent only 17% of the U.S. population to elect 51 senators and effectively rule this body over the objections of the other 83% of us.

This small-state bias produces a Republican bias. That is because most small states tend to be overwhelmingly rural, white, and conservative. Over-representing these small states means over-representing the Republican Party. In the six-year election cycle that produced the 2019 Senate, the Democratic senators actually won 4.5 million more votes nationwide than the Republican senators. And, on average, each Democratic senator won 30% more votes than each Republican senator. And yet the Republicans won the majority of the seats and control of the Senate – a flagrant case of minority rule. And this was not an odd occurrence: since 1952, every time the Republicans have been the majority in the Senate, the Democrats have actually won more votes than the GOP.

Because of the Republican bias in the Senate, the body has become the easiest place for Republicans to block policies supported by Democrats and the majority of Americans. This questionable tradition goes back far into the previous century. The Senate blocked ratification of the League of Nations treaty after World War I, stalled anti-lynching and civil rights legislation after World War II, and killed the Clinton universal healthcare program in the 1990s. More recently in 2019, the Democratic House passed a whole raft of bills supported by most Americans on the issues of gun control, global warming, equal pay for equal work, controlling violence against women, rebuilding vital infrastructure, lowering prescription drug costs, preserving net neutrality, and voting and campaign finance reform. All died in the Senate. If you are wondering why the U.S. lags behind most of our peer democracies in all of these policies areas, the Senate controlled by a Republican minority provides much of the answer.

Unfortunately, the prospects for ridding the Senate of this Republican bias are not promising. There have been a lot of creative suggestions – like giving senators from larger states more votes on bills than senators from small states – but they all require a constitutional amendment, which is extremely difficult to pass. (For more on this problem and possible solutions, see https://www.secondratedemocracy.com/unrepresentative-senate)

However, there are a few glimmers of hope. First, there is a push for statehood for Washington, D.C. and Puerto Rico. This would add four senators from more diverse and urban constituencies and be a step in the direction of making the Senate more representative – and more Democratic. Second, in the future, the misrepresentation in the Senate will become so absurd that it can no longer be ignored. The population disparities between the states are increasing. At the founding, the population ratio between the largest and smallest state was 13 to 1. Today it is 68 to 1 and is projected to grow to 154 to 1 by 2100. By 2040, it is estimated that the 70% of the U.S. population living in the large states will get only 30% of the representation in the Senate, while the 30% living in the smallest states will get 70% of the representation. And by 2050, it will take only 5% of our population to elect a majority in the Senate! At that point, Senate decisions could become so obviously unfair, undemocratic, and obstructionist that reform efforts would have to be taken more seriously.

The Filibuster

The main reason the filibuster is politically undesirable is because it violates the central democratic principle of majority rule. It allows a minority of 41 senators to control the legislative process and prevent the majority from passing bills. Theoretically, you can get 41 senators from small states that represent as little as 10% of the American electorate. This means that one in ten Americans can block bills that nine out of ten Americans want. This built-in ability to frustrate the political will of the overwhelming majority is a ridiculous situation in any country which calls itself a democracy.

But is the filibuster biased against Democrats? After all, the Democrats have used it many times when they have been in the minority in the Senate. But the partisan bias in this procedure is revealed by the fact that virtually all the large increases in the use of the filibuster have taken place when the Republicans have been in the minority. The reason for this is that it is the Republican Party that most often wants to hobble government and prevent the passage of new legislation and new programs. The Democrats are the party that believes in active government and the use of government policy to address the pressing problems faced by the nation. The filibuster, as a political tool that blocks legislation, thus works much more to the advantage of the Republicans who want to block the creation and expansion of government programs. This is why the Republicans have used the filibuster roughly twice as often as the Democrats. And it’s one of the reasons why the Senate has been known as the “graveyard of progressive policies.”

Not too surprisingly, no other democracy in the world has the filibuster. They all have rejected a procedure that is anti-democratic and blatantly favors some parties over others. And they seem to get along fine without it. Also, while some may think the filibuster is American as apple pie, most of the states don’t think so. Most state governments consider filibusters to be a bad idea and have rejected their use in their legislatures. Thirty-six states have nothing like a filibuster in their procedures. And in many of the states where it is a possibility, like Vermont, it is used only rarely. There are only a handful of states, such as Texas, where the filibuster is a commonly used tactic. So even among other legislative bodies in the U.S., this process is viewed with a great deal of skepticism.

The most obvious solution to this problem is to simply amend the Senate rules to get rid of the filibuster and allow a simple majority of 51 senators to cut off debate. This is not as radical as it sounds, because it would simply bring the Senate in line with the way things work in most other democracies and in most of the states. There have also been proposed reforms that would make the filibuster harder to use, or easier to end. (For a more in-depth analysis of this problem and proposed reforms, see https://www.secondratedemocracy.com/the-filibuster/

Currently, the movement to abolish this undemocratic rule is building in the Senate. The Democrats have now gained control of the House, Senate, and Presidency for only the third time in the last 30 years. So they would seem to be in a position to finally pass their policy agenda fairly intact – except for the filibuster that could block most of those bills. So more and more Democratic senators are calling for the abolition of the filibuster. As of this writing, the main obstacle is a Democratic senator, Joe Manchin, from West Virginia, who as pledged that “There is no circumstance in which I will vote to eliminate or weaken the filibuster.” In another development, many Democrats are hoping to expand the use of the budget reconciliation parliamentary loophole that allows taxing and spending bills to be passed with simple majority. This would enable the Democrats to avoid the filibuster and pass some parts of their legislative agenda. Currently, Manchin vehemently opposes this tactic as well.

As the year progresses, large parts of the Democratic agenda are likely to pass the House — universal child care subsidies, fairer taxes, cheaper public colleges, stronger environmental protections, more spending on infrastructure, more effective anti-poverty policies – only to see all these bills killed by the Republican filibuster in the Senate. This will clearly create more momentum for change.

The Supreme Court

There is no Republican bias in the structure or procedures of the Supreme Court itself. However, there is a clear Republican bias in the approval process for justices. Again the culprit is the two-seats per state rule in the Senate. It gives less-populated conservative states much more say over who is appointed to this incredibly powerful body. In 2016, the Senate Republicans who blocked President Obama’s nominee to the Court, Merrick Garland, represented 20 million fewer people than the Democrats who supported him. When President Trump’s nominee, Neil Gorsuch, was approved by the Senate in 2017, the 45 Democratic Senators who opposed him actually represented 25 million more Americans that the 55 Republican Senators who supported him. This happened again with Trump’s second nominee, Brett Kavanaugh, who was approved by Senators who represented only 45% of the American public. And the same thing occurred with Trump’s appointment of Amy Coney Barrett — who was approved by Republican Senators who represented 14 million fewer Americans than the Senate Democrats who opposed her. The effect of an approval process that is biased against Democrats is a Supreme Court that has been pushed decisively to the political right for the foreseeable future.

Fixing this problem is difficult. As noted earlier, there are no easy solutions to the problem of two-seats per state in the Senate. There has been some talk of expanding the number of justices, which would allow the Democrats to add more justices to the Court. But the prospects for such a radical reform are far from clear at this point.

The Electoral College Bias

When Democrats think about how the political system is rigged against them, the institution that usually first comes to mind is the Electoral College. It’s hard to ignore that twice within recent memory, Democratic candidates have won the popular vote and lost the electoral vote. How different it would have been if Al Gore had been president after the 9/11 attacks or if Hillary Clinton had been in office when the pandemic hit.

One part of the problem with the Electoral College is that there is a small state bias. It occurs because small states all get the minimum of three electoral votes (two for their Senators and one for their Representative) no matter how small their population. This means that in Wyoming it only takes 170,000 voters to elect an elector, while in California it takes 600,000. In this way, people in small states get more influence over who becomes president – and small states tend to be more conservative, white, and Republican.

But this small state bias is relatively modest compared to the enormous advantage that small states get in the Senate. It is estimated Republican presidential candidates get only about 20 more votes than they really deserve because of this bias. Most presidential elections are not close enough for this to matter. One case where it did matter was the 2000 election of George Bush, who won by only five electoral votes. The small state bias provided him with the winning margin.

But the main problem with the Electoral College is not the small state bias, but the fact that the winner of the popular vote can lose the presidency. And the main culprit here is the winner-take-all arrangement in most states. This enables the winning candidate to get all of the state’s electoral votes no matter what the margin of victory. This is what creates the disconnection between the popular vote and the Electoral College vote. The table below illustrates how this problem occurs.

How to Win the Popular Vote and Lose the Electoral Vote

The Republican ekes out a close win in the larger State A and gets its 10 electoral votes, while the Democrat wins by a landslide in the smaller State B and gets its 9 electoral votes. But the Democrat actually wins many more total votes 2,300,000 to 1,500,000. The problem is that many more of the Democratic votes were wasted in State A – 900,000 – than the Republicans wasted in State B – 400,000

Interestingly, this problem could actually help a Democrat win the presidency while losing the popular vote. This came very close to happening in 2004. John Kerry lost the popular vote to Bush by 3 million votes. But if he had won 60,000 more votes in Ohio, and received that state’s electoral votes, he would have won the presidency. This would have been just as undemocratic and unacceptable as Trump’s victory over Clinton.

So there are two reasons to get rid of the Electoral College. There is (small) bias against Democratic candidates, and a very real possibility that the elected president will not be the winner of the popular vote. Many reforms have been suggested to solve these problems. The most obvious one is simply to move to a straight popular vote system – the way we elect governors in all the states. But this would require a constitution amendment, and we have the hardest constitution to amend in the entire world – it takes a supermajority of two-thirds of both Houses of Congress and three-quarters of the states to enact an amendment. So it only takes 13 states to scuttle the move to a popular vote. And the 13 smallest states – who benefit from the small state bias in the Electoral College – actually represent only 4% of the U.S. population.

There are proposed reforms that don’t require a constitutional amendment. Some states are considering getting rid of winner-take-all on the state level and having each of their congressional districts choose their own winning candidates—which would mean that Republican and Democratic candidates would probably both win seats in most states. However, the problem is that this reform actually makes it more likely for the winner of the Electoral College to be the loser of the popular vote. It doesn’t get rid of the winner-take-all source of the problem, it just moves it to the district level.

Right now the best solution is something called the National Popular Vote Plan, which would keep the Electoral College, but ensure that the winner was the candidate who received the popular vote. (For a more in-depth analysis of the problems of the EC and various proposed solutions, see https://www.secondratedemocracy.com/outmoded-electoral-college/)

How the Separation of Powers Hurts Democrats

Another institutional arrangement that disadvantages Democrats is the separation of powers. The main problem is that this system is prone to gridlock – and gridlock more often hurts Democrats than Republicans. The reason that the separation of powers system tends to fall into gridlock is simple. It takes three separately elected bodies – the House, the Senate, and the Presidency – to approve any law. More often than not, different parties control these different bodies – and it only takes one of them to block legislation.

In contrast, most other major democracies use a parliamentary system that is not prone to gridlock. In these countries, it usually only takes the approval of one elected body to pass a law. Many of these countries are unicameral, with only one elected legislative body. Many others are effectively unicameral, because one of the two houses has little power. For example, the House of Lords in Great Britain cannot block policies passed by the House of Commons. And in parliamentary democracies, the prime minister is extremely unlikely to try to block legislation, because he or she is elected by the majority party or party coalition who passes the laws in the first place. So it is much easier for government to pass needed policies in these parliamentary systems.

As Americans, we are all taught that the separation of powers is a good thing – that it is a politically neutral safeguard that ensures that no one group gets too much power. But this is a myth. In reality, this arrangement strongly increases the power of conservative interests and the gridlock it creates has a pernicious ideological and class bias.

Gridlock tends to preserve the status quo and inhibit change. This works to the advantage of well-off interests because it is they who are benefiting most from the current status quo. Think about the rich who don’t want to have their taxes raised, or corporations that don’t want to be regulated. To stop an increase in taxes or regulation they only have to kill a bill in one subcommittee in either the House or Senate. Or in one full committee. Or in a floor vote in either body. Or they can have the president veto it. So they only have to win once. But the road to victory for Democrats who want to increase taxes or regulation is much harder – they have to win in every subcommittee, every full committee, and each floor vote in both Houses and also convince a president not to veto the bill.

Generally speaking, it is those who are not doing well in society – the poor, the sick, minorities, the victims of pollution, the jobless, etc. – who need things to change. A system designed to discourage change and protect the status quo does not work in their interests. Gridlock favors the winners in society not the losers. And it gives the advantage to Republicans and the special interest they represent –like the wealthy and corporations who want to block reforms — over the majority of citizens who often want to pass those reforms.

Many Americans seem obsessed with the idea of preventing government from doing bad things. Even Democrats, whom we’ve seen are systematically disadvantaged by this arrangement, will often celebrate the separation of powers when it allows them to torpedo what they see as a destructive Republican bill. But this obsession with preventing bad government blinds people to an important fact: making it hard for government to do bad things also makes it hard for government to do good things that improve our lives – like solving societal problems. A government that is too hobbled to hurt people is also too hobbled to help them when they need it. (For more on the problems created by our separation of powers system, see https://www.secondratedemocracy.com/built-in-gridlock)

Unfortunately, solving the problems created by our separation of powers system is not easy. We are not going to change to a parliamentary system. The only real hope for the Democrats is that they may at times be able to control the House, the Senate, and the Presidency and thus overcome the tendency to gridlock. But as we’ve seen lately, even in this situation, gridlock can occur – especially if the Republicans use the filibuster in the Senate.

But we can learn some lessons from the two periods in the twentieth century when Democrats were in control and were able to pass an agenda of pathbreaking policies that produced major improvements in American society – the 1930s and the 1960s. The key factor here was that not only were the Democrats in control, but they were under strong grassroots pressure by social movements to pass progressive legislation. In the thirties, it was the Labor Movement that was key in pushing the Roosevelt government to pass innovative policies like the right to organize unions, the regulation of the financial industry, and Social Security. In the sixties, there were a number of significant social movements – including the Civil Rights Movement and the Environmental Movement – that forced Congress to pass strong legislation to address serious problems that had been previously neglected. The far-reaching legislation of these two decades shows that strong and prolonged pressure from the bottom up can overcome the tendency to gridlock in our system. It’s as if passing truly effective policies through a separation of powers system is like trying to open a heavy and very rusty door. It can only be done by sustained pushing by organized citizens. It shouldn’t take this much effort for citizens to get their way – and it doesn’t in a parliamentary system – but this is the situation we are forced to deal with.

The Anti-Democratic Bias in Campaign Finance

Another part of our political system that disadvantages Democrats is how we finance elections. Unlike most other advanced democracies, the U.S. relies almost entirely on private money to finance political candidates’ campaigns. Who benefits most from the dominance of private money in elections? The Republicans. Why? It’s simple: they have more money to give to candidates. And candidates with more money have a better chance of winning. The Center for Responsive Politics found that the highest spending candidate wins in 90% of the House races and 80% of the Senate contests.

Enormous amounts of contributions come from businesses and the wealthy. Since 2009, a dozen billionaires and their spouses have contributed almost $3.5 billion to elections – almost one of our every thirteen dollars raised during that time. To be sure, some of the billionaires supported Democrats, like Bloomberg. But most wealthy Americans lean Republican because this is the party that best supports their personal and business interests. And corporations tend to lean strongly Republican in the massive amounts they give to candidates through business political action committees. There are of course PACs that support Democrats, like environmental PACs and union PACs. But these other PACs typically have much less funds to give candidates. Typically, for example, corporate PACs spend six times the amount that union PACs spend on congressional elections.

There are also individual contributions to campaigns. And some grassroots campaigns have been successful in raising money. But in general, individual contributions tend to come from those who are well off and go to the Republican candidates they support. People who gave over $200 to campaigns (mostly business executives and professionals) gave 70% of the total contributions coming from individuals – and yet represent only 1% of the population.

Most other modern democracies don’t rely so much on private funding or having funding systems that favor one party so strongly over another. It turns out that if a country does not have a Supreme Court that insists that money is speech and that corporation are people, this is not a hard problem to solve.

One way that other democracies lessen the part played by private money is lessening the role that any money plays in campaigns. For example, many countries have short campaigns periods. In the U.S., presidential campaigns can start a year or more before election day. But in Canada, they run only 11 weeks. The shorter the campaign period, the less important money becomes, and less important large donors become.

Seventy-seven percent of European countries also provide free or subsidized access to the media for political parties. In the U.S., the need to spend millions on expensive TV ads is one of the main reasons campaigns are so expensive. A few countries, such as Norway, simply ban campaign ads from radio and television. In Germany, each party creates just one 90-second ad for the entire campaign. These kinds of approaches to election media lessen the need for candidates and parties to spend money and thus lessen the influence of large donors.

Free or restricted media and short election seasons mean that campaign spending is dramatically lower than in the U.S. In Germany, the main parties spend between 20 and 30 million euros to elect all of their members of parliament. That amount of money wouldn’t even fund four successful Senate campaigns in the United States, which average about $10 million dollars each. And of course U.S. presidential candidates often spend hundreds of millions each on their campaigns.

Some countries have gone further to reduce campaign expenditures and have enacted legal limits on campaign spending, including Austria, Italy, New Zealand, and the United Kingdom. In Canada, for instance, the limit on campaigns for parliament average about $110,000 per district – much less than the money spent on U.S. congressional campaigns. These limits mean candidates don’t have trouble raising the necessary donations and have no need to rely on wealthy donors.

Most other democracies also substitute large amounts of public money for private money in campaigns. This is probably the single most effective way to lessen the undemocratic effects of private contributions. In Europe, 86% of the countries provide some direct public funding to parties and it accounts for an average of 66% of party funds spent in elections. Norway has some of the most generous public subsidies and so private donors account for only one-fourth of the money spent on campaigns. Obviously, the more campaigns rely on public funding, the less room there is for private money from special interests to undermine the fairness of elections.

Most European countries also either ban or heavily restrict campaign contributions from private organizations like corporations and unions. Many, like Belgium, Canada and France, also place limits the amount of individual contributions to parliamentary candidates. The figure is $1,000 in Canada. By and large, other major democracies are also not plagued by Super PACs and other sources of outside spending to affect election outcomes. In France, for instance, it is illegal for corporations, unions, and independent PACs to fund their own ads in favor of their preferred candidates.

The most obvious solution to our campaign finance problems is to follow the example of other democracies. We could mandate shorter campaigns, limit campaign spending, ban outside spending, limit and/or subsidize television ads, require public funding – all of which we know can lessen the undue influence of wealthy interests on elections. But all of these policies have been declared unconstitutional by the Supreme Court.

So some reform groups like American Promise have proposed Constitutional amendments that would allow greater restrictions on campaign spending and overturn the Court’s rulings banning such laws. Such amendments would be a huge breakthrough and pave the way to adopting European-like laws to rein in campaign spending and outside spending and to provide for public financing.

Clean Elections is a voluntary public financing model favored by many reformers. Candidates qualify for public funding by collecting a certain amount of small $10-$25 donations. This ensures that they are serious candidates. To receive public funding they must pledge to accept no private funds and to spend none of their own money. All candidates, both major and minor party ones, get the same amount of financing. If independent PACs enter the race and spend money on ads in favor of one candidate, the rival candidate receives additional matching public funds to help combat those ads.

The advantages of this approach are many and impressive. It levels the financial playing field between candidates so none has an artificial advantage of others. It enables voters, not contributors, to be the main determinants of who wins an election. And it encourages legislators to pay more attention to their constituents’ needs, rather than the needs of special interest contributors. Legislators also spend much less time raising money and more time doing the job they were elected to do.

These advantages have become obvious in the few states, like Maine, where the Clean Elections model is now used. Most candidates, both Democratic and Republican, are quite happy to use the public funding and avoid the distractions and questionable ethics involved in continuous fundraising. Over 70% of Maine citizens want to keep the system, and only 20% want to repeal it. There is every reason to believe that such a system would also find broad public acceptance if it were used more widely.

Clean Elections is an attempt at full public financing, so candidates can be free of all independent money. Other suggested reforms rely on partial public financing to try to offset some of the effects of private money. Seattle, Washington has implemented a voucher program which gives registered voters $100 to donate to city council candidates. This did not stop large outside spending from local companies like Amazon, but several city councilors were elected without the help of wealthy supporters.

Another approach to partial public funding is matching funds, where the government matches donations from small contributors. In 2019, the U.S. House passed a bill (blocked in the Republican Senate) that would match each dollar from a private donor up to $200, with $6 in public funds, thus creating a maximum donation of $1,200. New York City, Los Angeles, and Berkeley have also enacted matching programs for small donations. Several other major metropolitan areas have also passed various forms of public funding in recent years, including Washington, D.C., Baltimore, and Denver.

None of these partial funding programs is perfect and they do not fully address the problem of outside money. Full public financing is still the gold standard for getting private money out of elections. But all of these plans are a step forward and would level the playing field for Democratic candidates.

We Need a Fairer Political System

Democrats have often looked on with envy at other major Western democracies, where parties on the left have been able to implement a set of progressive policies on issues like global warming, the minimum wage, voting rights, infrastructure investment, women’s rights, universal health care, and poverty reduction. The assumption, often, is that citizens in those countries are simply more supportive of these kinds of policies. But in fact, one of the main reasons we lag behind is because our government and political system are structured in so many ways to disempower Democrats. Until we can fix our political system and make it fairer and more democratic, Democrats will always be fighting an uphill battle.

Douglas J. Amy is a Professor Emeritus of Politics at Mount Holyoke College in Massachusetts. Amy is a leading expert on electoral voting systems, including proportional representation, redistrict-ing issues in the United States, and the plight of third party candidacies.

He is the author of a number of books, including “Government is Good: An Unapologetic Defense of a Vital Institution” as well as “Behind the Ballot Box: A Citizen’s Guide to Voting Systems” (2000) and “Real Choices, New Voices: How Proportional Representation Elections Could Revitalize American Democracy” (2002), which won the George H. Hallett Award from the American Political Science Association.