Judge Steven Platt: Balance Is the Key to Reviving Our Democracy

The last four years, and particularly the last few months, in which COVID-19 has plagued our country and caused the death of 300,000 of our citizens, has at best generated serious questions about our federal government’s ability to protect its citizens as well as its ability to institutionally respect and respond to the will of the huge majority of the people they were elected to represent.

The last year in particular, with the rise of Black Lives Matter movement and the response to it from the far right in the form of self-styled and armed military in the midst of an unprecedented pandemic, has lowered even further the people’s confidence in their federal government.

This confluence of events and conflicting cultures and values put enough fear into most Republican and some Democratic U.S. senators and members of Congress who perceive their states’ voters to be so estranged from their own federal government that they view it as almost an alien force seeking to deprive them of fundamental freedoms by surveillance, the collection of personal information, and ultimately the confiscation of their guns. That fear caused these less than courageous elected officials to shift into survival mode to protect their elective offices from their own angry and — as these politicians see them — irrational constituents.

That this distortion of the facts could be used to intimidate enough U.S. senators and probably more than enough members of the U.S. House of Representatives to defeat the recent effort to assist constituents who needed help coping with the economic impact of the COVID-19 pandemic was tragically illustrated during the last six weeks. The balance of members needed to rationally address the common needs of their constituents were missing in action.

The explanation of this unfortunate reality is that the word “balance” is not in the vocabulary of either the extreme right or the extreme left. Their failure to understand its virtue in a representative democracy has begun to manifest itself in the dysfunction of some of the important institutions of our federal government and to a lesser extent so far, in some of our states.

If balance was sufficiently valued in our politics, state legislatures would cede or delegate the power to reapportion and shape congressional and state legislative districts to independent nonpartisan commissions whose only charge would be to draw constitutionally sound districts, which to the extent possible preserved communities within the district and were coherent and rational geographically and politically.

This would minimize or halt the current practice of designing districts to protect incumbent legislators while maximizing the number and power of the political party in power at the time. It would also cause incumbent office holders and candidates to be more concerned about being responsive to the interests of complete and diverse communities and the informed political center of their districts rather than the extreme left or right, which currently are concentrated in their geographically contorted districts to ensure their reelection.

Putting a greater value on “balance” in our politics would also compel our U.S. senators to return the use of the filibuster to its traditional role as a restraint on the untrammeled rule of the majority. That would mean that it would always be a “speaking filibuster,” which would end when those participating got tired of talking or when 60 members voted to stop listening and talking.

It would also end the unacknowledged but real obstruction of legislation if the measure got any less than 60 votes. A majority would pass the bill and/or confirm the appointee or judge unless the Constitution or a specific rule applying to that legislation or appointment required otherwise.

Finally, after the U.S. Senate in the name of needed “balance” restored the filibuster to its traditional role and use in that hallowed chamber, the House of Representatives would in a burst of reciprocity and recognition of the need for “balance” abandon what has become known as the “Hastert Rule.” The Hastert Rule, named after former Speaker of the House of Dennis Hastert (R-Ill.), mandates that no legislation will be brought up for a vote by the full House if it does not have the support of a majority party in the House.

This practice, which is nowhere to be found in the Constitution or any statute, effectively deprives all of the people who voted for and elected representatives who are not members of the majority party in the House of their right to vote on legislation that has been filed for consideration by the full House.

This practice has at times been used by both parties. The only rationale articulated for its use is to perpetuate the power of the majority party. Periodically it is abandoned for other overriding political reasons. When it is, good things tend to happen, such as the debt limit being raised to ensure the full faith and credit of the United States or relief is provided to victims of natural disasters.

All of these practices are usually defended as “institutional prerogatives.” Clearly if these institutional prerogatives have any value, it is less than the value of fundamental fairness, i.e. due process, that the exercise of these prerogatives denies to those citizens who voted for their member of Congress without being informed that their right to vote on legislation would be conditioned on their political party registration. Notwithstanding this, anyone who suggests that these practices be relegated to the dustbin of history runs the risk of being characterized as insensitive to the role of the institution itself.

For this reason, this writer’s response to those who argue that these practices are necessary to the preservation of the institutional integrity and powers of the Congress of the United States is to suggest that those who say that confuse Congress’s prerogatives with their personal perks and that their confusion may be fatal to our democracy.

“The inability to commit oneself to or believe in anything that transcends one’s private interests leads to a weakening of commitment to community and to self-absorption that is sometimes called narcissism,” the philosopher William M. Sullivan wrote. The alternative, Sullivan said, is a return to “the ideals of loyalty and service based on Trust and Commitment.”

It is that alternative that we should demand from our elected officials and candidates for public office, and the way they can demonstrate that they deserve our trust and loyalty is to end the current practices of legislative redistricting, by the legislature support modification of the filibuster and abolition of the “Hastert Rule.”

These actions would provide our citizens once again with the confidence that their voices can and will be heard and that public engagement is worth their time and effort. They are way overdue but sadly not forthcoming.

— STEVEN I. PLATT

The writer is a Senior Circuit Court Judge.

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