The Washington Post
August 18, 2023
Behind the sense that the political system is broken lies a collision between forces both old and new
In a country where the search for common ground is increasingly elusive, many Americans can agree on this: They believe the political system is broken and that it fails to represent them.
They aren’t wrong.
Faced with big and challenging problems — climate, immigration, inequality, guns, debt and deficits — government and politicians seem incapable of achieving consensus. On each of those issues, the public is split, often bitterly. But on each, there are also areas of agreement. What’s broken is the will of those in power to see past the divisions enough to reach compromise.
The Jan. 6, 2021, attack on the Capitol is both an extreme emblem of what happens when democracy stops functioning as it should and the result of relentless attacks by former president Donald Trump on the legitimacy of the election process based on lies and distortions, a continuing threat to U.S. democracy.
In more routine ways, the political system feeds frustration and discontent with its incapacity to respond to the public’s needs. There is little on the horizon to suggest solutions.
The failure has multiple origins, including a collapse of trust in institutions. But one of the most significant is a collision between forces both old and new.
The old dates to the writing of the Constitution — debates and compromises that resulted in representation in the House based on population and in the Senate based on equal standing for the states; the odd system by which we elect presidents; and lifetime appointments for Supreme Court justices. In general, the founders often distrusted the masses and sought to create structural protections against them.
The newer element, which has gathered strength in recent decades, is the deepening polarization of the political system. Various factors have caused this: shifts within the two parties that have enlarged the ideological gap between them; geographic sorting that has widened the differences between red and blue states; a growing urban-rural divide; and greater hostility among individuals toward political opponents.
The result is that today, a minority of the population can exercise outsize influence on policies and leadership, leading many Americans increasingly to feel that the government is a captive of minority rule.
Twice in the past two decades, the president was elected while losing the popular vote — George W. Bush in 2000 and Trump in 2016. That had happened only three times in the previous 200-plus years. The dynamic extends beyond the presidency to the other two branches of government.
A new Washington Post analysis found that four of the nine current justices on the Supreme Court were confirmed by senators who represent a minority of the U.S. population. Since 1998, Republicans have had a majority in the Senate a total of 12 years but did not during that time represent more than half the nation’s population, The Post’s analysis of population data and Senate composition shows.
The Post also found that during Trump’s presidency, 43 percent of all judicial and governmental nominees were confirmed by senators representing a minority of the population. Under President Biden, not quite 5 percent of nominees were confirmed by senators representing a minority of the population.
The state of democracy is not uniformly negative. In moments of crisis especially, elected officials have found common ground. At times, government action does reflect the public will. Under Trump, bipartisan congressional majorities passed and the president signed multiple rounds of relief during the covid-19 pandemic. Biden and Congress came together to pass a major infrastructure package in 2021. Last year, there was bipartisan agreement on legislation to spur production of semiconductor chips in the United States.
At times, protection of minorities and their rights from the will of the majority is needed and necessary. Checks and balances afford further protections that nonetheless can seem to hamstring government’s ability to function effectively. But on balance, the situation now is dire. Americans are more dissatisfied with their government than are citizens in almost every other democracy, according to polling.
Henry Brady, professor of political science and public policy at the University of California at Berkeley, has been studying these issues for many years. As he surveys the current state of the United States’ democracy, he comes away deeply pessimistic. “I’m terrified,” he said. “I think we are in bad shape, and I don’t know a way out.”
This is the first in a series of reports examining what is fueling the visceral feeling many Americans have that their government does not represent them. Alongside debates over specific policies, the overall state of democracy roils the national discussion. Heading into the 2024 presidential election, this issue is likely to be a critical factor for many voters.
Distrust in government
Trust in the federal government began to decline during the Vietnam War in the 1960s and then took a big hit amid the Watergate scandal in the early 1970s. There have been occasional rebounds — after the terrorist attacks on Sept. 11, 2001, or during the late 1990s when the economy was doing well. But for the past two decades — through good economic times and bad — mistrust has been persistent.
Individual institutions have suffered as well. Of late it is the Supreme Court’s reputation has been damaged due to rulings that have gone against popular opinion and a heightened sense that the court has become politicized. For Congress, the decline has been ongoing for decades. Only Wall Street and television news have seen more precipitous declines in trust over the past four decades, according to calculations published by the American Academy of Arts and Sciences.
Americans have long been skeptical of the power of the central government. Scandals and corruption over the years have added to the problem. Lately, officials have openly attacked the very institutions of which they are a part, making it even harder for the bureaucracy to function effectively. No one has done this more than Trump. Attacks on institutions have been a hallmark of his time in politics.
While there is some universality to these conditions, citizens in only a handful of democratic countries take a dimmer view of their government than Americans do of theirs.
For much of the United States’ history, the constitutional system created by the founders worked reasonably well. The Civil War is an obvious exception, and other periods have tested the collective will. But overall, government generally functioned, even if not perfectly.
More recently, however, the system’s weaknesses became more apparent as tribalism shapes much of political behavior and the Republican Party has departed from its historical moorings. Trump’s impact has distorted traditional Republican conservatism and has led many Republicans to accept as reality demonstrably untrue beliefs. The best example of that is that a majority in the GOP say Biden was not legitimately elected. The hard-right wing of the Republican Party and Trump voters in particular have been resistant to compromise.
“In comparison to European countries, our constitutional system is not well suited for polarized political parties,” said Nathaniel Persily, a law professor at Stanford Law School.
Election of presidents
The Constitution created an unusual mechanism for electing the president — an electoral college. It was built on assumptions that over the years have proved to be faulty.
The founders distrusted a system based on the popular vote, fearing many citizens would not be well-informed. They put power in the hands of electors. They thought the House would often end up picking the president, not anticipating the effects of what quickly became a two-party system in the United States. The rationale for the current system has been overrun by the realities of today’s politics.
“It was created because the founders couldn’t figure out what to do,” said George C. Edwards III, a political science professor at Texas A&M University and author of “Why the Electoral College Is Bad for America.” “It doesn’t work at all as the founders intended.”
During the first two centuries of the country’s history, there were only three cases in which the person elected president did not receive a majority of the popular vote, in 1824, 1876 and 1888. Now it has happened twice in a quarter century and could happen again in 2024. In both 2000, when Bush became president, and 2016, when Trump was elected, the popular vote supported the Democratic nominee, Al Gore and Hillary Clinton respectively, yet the electoral college vote went in favor of the Republican.
During the past two decades, the number of competitive states in presidential elections, where the victory margin has been five percentage points or fewer, has declined. Meanwhile, the number of states decided by margins of 15 percentage points or more has increased, based on an analysis of state-by-state results by The Post.
Because the outcome in the most competitive states can be decided by a relatively small number of votes, Republicans now have a significantly better chance of winning in the electoral college than in the popular vote. Democrats, meanwhile, roll up huge margins in deep blue states like California that give them no significant boost in the electoral college math.
In the Great Compromise among delegates to the Constitutional Convention, the House was to be divided based on population, while the Senate would give each state equal representation regardless of population.
In times past, many state delegations to the Senate were split between the two major parties. In 1982, for example, about two-dozen states had split representation. Today there are only six true splits, and those states account for about 9 percent of the U.S. population.
Republicans tend to have full control in less populated states, creating an imbalance in the number of senators they send to Washington and the percentage of the national population they represent. Even when they have recently held a majority in the Senate, they represent a minority of the population. In 2024, two of the nation’s least populous states — West Virginia and Montana — could flip control of the Senate from Democrats to Republicans, if GOP challengers prevail over Democratic incumbents.
This has had an impact especially on confirmations of judicial nominees and senior executive branch appointees. During the four years Trump was in office, nearly half of the individuals nominated for key positions were confirmed by senators representing a minority of the population. No other recent president had more than 5 percent confirmed by senators representing a minority of the population.
Through gerrymandering, population dispersion and the sorting of where people prefer to live, competition for House seats has declined.
The overwhelming majority of districts now lean strongly either to Republicans or to Democrats. In those districts, that makes the primary election more important than the general election. Because turnout is generally concentrated among the most fervent voters in primary contests, more extreme candidates have an advantage. This has widened the ideological gap in the House, which makes compromise even more difficult.
It has also led to the kinds of dysfunction seen this year, such as the multi-ballot marathon to elect Rep. Kevin McCarthy (R-Calif.) as speaker, or the threats to let the government default on its debts that ultimately were avoided by an old-fashioned bit of compromise.
As the number of swing districts has declined, another phenomenon has become evident: Even in open-seat races, which historically have been more contested than those involving incumbents, the number of landslide victories by members of both major parties has increased dramatically.
The Supreme Court
Democrats have won the popular vote in seven of the last nine presidential elections. But during that time, Republican presidents have nominated six of the nine current members of the Supreme Court. Four of the nine justices, including the three nominated by Trump, were confirmed by senators representing a minority of the population.
The percentage of Americans represented by senators voting to confirm justices has been decreasing over the past half century. Now that justices can be confirmed with a simple majority vote, rather than a supermajority, the phenomenon of confirmation by a majority of senators representing a minority of citizens has become commonplace when Republicans hold the Senate majority.
In Washington, political divisions have led to gridlock and inaction on many issues. In the states, the opposite has occurred because states have increasingly become either mostly red or mostly blue.
In just two states is the legislature split between Republicans and Democrats. In more than half of the states, the dominant party enjoys a supermajority, which means they can override vetoes by a governor of a different party or generally have their will on legislation.
Similarly, full control of state government — the legislature and the governor’s office — is the rule rather than the exception. Today 39 states fit this definition. The result is a sharper and sharper divergence in the public policy agendas of the states.
The dominant party has been able to move aggressively to enact its governing priorities. That has meant tight restrictions on abortion in Republican states and few or no restrictions in blue states; it’s meant challenges to LGBTQ rights in red states and affirmation of those rights in blue states.
These divisions have made it possible for the dominant party to govern with little regard to the interests of those with allegiance to the minority party and often little accountability as well. The result is two Americas with competing agendas and values.
Public opinion vs. public policy
The gap between public policy and public opinion is one major consequence of today’s frozen federal government. Three of the most talked about issues reflect that: abortion, guns and immigration.
On abortion, most Americans oppose last year’s Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which ended the constitutional right to abortion. On guns, big majorities favor individual proposals to tighten laws, but the gun lobby remains powerful enough to block action.
On immigration, there has been a majority for some years favoring tougher border controls along with a path to citizenship, with some penalties, for the millions of undocumented immigrants living here. Every effort to deal with this in Congress over the past two decades has failed, including attempts to resolve the plight of people brought here illegally as children, known as “dreamers.”
One way to deal with some of the structural issues — the electoral college, a Senate where a minority of the population can elect a majority of members or the lifetime appointments for Supreme Court justices — would be by amending the Constitution. But the U.S. Constitution, though written to be amended, has proved to be virtually impossible to change. Nor is there cross-party agreement on what ails the system. Many conservatives are satisfied with the status quo and say liberals want to change the rules for purely partisan reasons.
It was the drafters of state constitutions who saw the need for amending such documents. Over the history of the country, state constitutions have been amended thousands of times — more than half of all those proposed. But while there have been about 12,000 proposed amendments to the U.S. Constitution, Congress has submitted just 33 to the states, of which 27 have been ratified.
The last amendment was approved in 1992, and that was a provision that had been proposed along with others that became the Bill of Rights. In reality, it has been half a century since a contemporary amendment has been ratified. Given the political conditions in the country, the prospect of two-thirds of both the House and Senate voting to propose an amendment and then three-fourths of the states ratifying it seems extremely unlikely.
To remain a living document, the Constitution needs to be adaptable to changing times, perspectives and conditions. The alternative to amending the Constitution is through judicial interpretation by the Supreme Court. Today the court is dominated by “originalists” who interpret the document through a strict reading of the words and times in which it was written — long a goal of conservatives. But the America of 2023 is not the America of the framers of the Constitution in the late 18th century, a time when enslaved people were counted as three-fifths of a person and women did not have the right to vote.
Not all countries have written constitutions — Britain, for example. But the amendment process when functioning effectively is “a mechanism to peaceful revolution,” said historian Jill Lepore, who directs the Amendments Project at Harvard University. So there is value to a written constitution, but only if it can be changed.
“The danger,” Lepore said, “is that it becomes brittle and fixed — and then the only way to change your system of government or to reform a part of it is through an insurrection.”
About this project
In the analysis of population data and Senate composition, The Post’s count of senators in each year represents the composition of the Senate on Jan. 31 of that year, with two exceptions: Al Franken is counted in the 2009 Senate and Norris Cotton is counted in the 1975 Senate. In the analysis of confirmations over time, The Post examined all Senate roll call votes with a result of “confirmed.” For all senators who voted to confirm a given nominee, The Post calculated the percent of Americans from the states of those senators that year, with each senator representing half of their state population. Many nominees to various positions were confirmed with a voice vote or through a unanimous consent agreement; these confirmations are not reflected in this data. In the analysis of House elections, The Post determined open House races using several sources, including FEC and MIT elections results data.
Reporting by Dan Balz and Clara Ence Morse. Editing by Griff Witte. Copy editing by Mina Haq. Project editing by KC Schaper. Design and development by Courtney Beesch and Tyler Remmel. Design editing by Betty Chavarria. Illustrations by Courtney Beesch with images from iStock. Topper animation by Emma Kumer. Photo editing by Christine T. Nguyen. Graphics by Clara Ence Morse and Hanna Zakharenko. Graphics editing by Kevin Uhrmacher. Data editing by Anu Narayanswamy. Visual enterprise editing by Sarah Frostenson. Research provided by Monika Mathur. Additional editing, production and support by Philip Rucker, Peter Wallsten, Jenna Johnson and Tom Justice.