The Oppression of the Supermajority

The defining political fact of our time is not polarization. It’s the thwarting of a largely unified public.

Tim Wu

By Tim Wu

Mr. Wu is a law professor.

  • March 5, 2019

We are told that America is divided and polarized as never before. Yet when it comes to many important areas of policy, that simply isn’t true.

About 75 percent of Americans favor higher taxes for the ultrawealthy. The idea of a federal law that would guarantee paid maternity leave attracts 67 percent support. Eighty-three percent favor strong net neutrality rules for broadband, and more than 60 percent want stronger privacy laws. Seventy-one percent think we should be able to buy drugs imported from Canada, and 92 percent want Medicare to negotiate for lower drug prices. The list goes on.

The defining political fact of our time is not polarization. It’s the inability of even large bipartisan majorities to get what they want on issues like these. Call it the oppression of the supermajority. Ignoring what most of the country wants — as much as demagogy and political divisiveness — is what is making the public so angry.

Some might counter that the thwarting of the popular will is not necessarily worrisome. For Congress to enact a proposal just because it is supported by a large majority, the argument goes, would amount to populism. The public, according to this way of thinking, is generally too ill informed to have its economic policy preferences taken seriously.

It is true that policymaking requires expertise. But I don’t think members of the public are demonstrating ignorance when they claim that drug prices are too high, taxes could be fairer, privacy laws are too weak and monopolies are too coddled.

Others remind us that the United States is a democratic republic, not a direct democracy, and that the Constitution was designed to modulate the extremes of majority rule. Majorities sometimes want things — like bans on books, or crackdowns on minorities — that they should not be given.

This is true. It is also true that a thoughtful process of democratic deliberation and compromise can yield better policy outcomes than merely following the majority’s will. But these considerations hardly describe our current situation. The invocation of constitutional principle has become an increasingly lame and embarrassing excuse. The framers of the Constitution, having experienced a popular revolution, were hardly recommending that the will of the majority be ignored. The Constitution sought to fine-tune majoritarian democracy, not to silence it.

The most obvious historical precedent for our times is the Progressive era. During the first decades of the 20th century, the American public voted for politicians who supported economic reforms like maximum-hour work laws and bans on child labor. But the Supreme Court struck down most of Congress’s economic legislation, deeming it unconstitutional.

In our era, it is primarily Congress that prevents popular laws from being passed or getting serious consideration. (Holding an occasional hearing does not count as “doing something.”) Entire categories of public policy options are effectively off-limits because of the combined influence of industry groups and donor interests. There is no principled defense of this state of affairs — and indeed, no one attempts to offer such a justification. Instead, legislative stagnation is cynically defended by those who benefit from it with an unconvincing invocation of the rigors of our system of checks and balances.

The president, because he is representative of more voters, might be thought an important remedy to this problem. And when running for office, Mr. Trump did gesture at his support for popular policies, promising to control drug prices, build public infrastructure and change trade policy to favor dispossessed workers. Yet since coming to power, Mr. Trump, with a few exceptions, like trade, has seemed to lose interest in what the broader public wants, focusing instead on polarizing issues like immigration that are not the public’s main concerns but the obsessions of a loud minority faction.

As the United States begins the process of choosing the next president and Congress, we need to talk more openly about which candidates are most likely to deliver the economic policies that the supermajority wants. Yes, the people can be wrong about things, but so too can experts, embedded industry groups and divisive political factions. It is not a concession to populism, but rather a respect for democracy, to suggest that two-thirds of the population should usually get what they ask for.

Tim Wu (@superwuster) is a law professor at Columbia, a contributing opinion writer and the author, most recently, of “The Curse of Bigness: Antitrust in the New Gilded Age.”

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