Checks And Balances: Indirect Elections' Role

The constitution limits majority rule by protecting the rights and interests of minorities through countermajoritarian institutions. These institutions include constitutional protection of civil liberties and property rights, as well as unelected authorities with veto power over government policy, such as militaries and monarchies. For example, the US Bill of Rights, which is a countermajoritarian institution, protects the rights of individuals, while other similar institutions protect the rights of minority ethnic, religious, or linguistic groups. In addition, some countries have adopted cloture rules that allow simple majorities to end parliamentary debate, eliminating the possibility of minority vetoes. However, super-majority rules empower the minority by giving them veto power over the majority.

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Cloture rules

In Hong Kong, cloture was introduced in the Legislative Council in 2012 to halt filibusters. In Norway, incremental democratization over time led to the gradual removal of countermajoritarian institutions, including indirect parliamentary elections.

Countermajoritarian institutions

The US Bill of Rights is another example of a countermajoritarian institution, protecting the rights of individuals. The very purpose of the Bill of Rights was to place certain subjects beyond the reach of majorities and officials, establishing them as legal principles to be applied by the courts.

Some critics argue that countermajoritarian institutions can empower illiberal forces and subvert democracy. For instance, cloture rules in Australia, Canada, France, and Great Britain allow simple majorities to end parliamentary debate, eliminating the possibility of minority vetoes. Similarly, super-majority rules can empower the minority, giving them a stronger veto power than the majority.

Constitutional protection of civil liberties

The constitution limits majority rule by indirect elections through the protection of civil liberties, which are safeguarded by countermajoritarian institutions. These institutions act as a check on the power of electoral majorities, ensuring that the rights and interests of minorities are upheld. This is particularly important in protecting individual liberties and the democratic process, especially in the face of rising illiberal forces globally.

One example of a countermajoritarian institution is the US Bill of Rights, which protects the rights of individuals. Other examples include legislative or cabinet quotas for ethnic or religious minorities and granting veto power to unelected authorities such as militaries and monarchies. These measures ensure that the rights of minorities are not overridden by the majority.

The very purpose of the Bill of Rights is to place certain subjects beyond the reach of majorities and officials, establishing them as legal principles to be applied by the courts. This includes fundamental rights that are not subject to a vote or the outcome of elections, as articulated by Lincoln. For instance, economic liberty, such as the right to earn a living without arbitrary government interference, is an implied constitutional right that should be protected.

However, critics argue that courts have abandoned the protection of economic rights, adopting a permissive "rational basis" test for judging government actions. This results in deference to elected majoritarian institutions, even when their actions violate natural rights and economic liberty.

Indirect election systems can distort the popular vote, as seen in the US and Chile, where appointed senators can sway the outcome in favour of a coalition with fewer votes. To address this, some countries have replaced indirect elections with direct presidential elections, as in Argentina. Cloture rules in Australia, Canada, France, and Great Britain have also limited minority veto power.

While majority rule is a fundamental principle in democracy, mechanisms like supermajority rules and the elevation of certain inalienable rights can empower minorities and prevent tyranny of the majority. This balance ensures that the rights and interests of all groups are respected in a democratic society.

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Appointed senators

The United States Constitution originally provided for the indirect election of senators, who were chosen by state legislatures rather than by popular vote. This was intended to create a check on majority rule and to ensure that the Senate would act as a more deliberative body, representing the interests of the states. The original system of electing senators lasted from 1789 until the ratification of the Seventeenth Amendment in 1913, which provided for the direct election of senators by the people of each state.

The idea of an indirectly elected Senate was rooted in the Constitutional Convention's desire to create a bicameral legislature that balanced the interests of both the states and the people. The House of Representatives, as the body directly elected by the people, would represent the interests of the population as a whole. In contrast, the Senate, with its indirect method of election, would represent the interests of the individual states and provide a check on the power of the majority.

One of the key arguments in favour of indirect elections for senators was the belief that it would result in the selection of individuals with superior qualifications and a greater degree of wisdom and moderation. Reformers argued that direct elections would increase the responsiveness of senators to the will of the people. It was thought that state legislatures, as representative bodies with a vested interest in selecting capable individuals, would make more informed choices than the general public. This system was designed to foster a sense of federalism and ensure that the Senate would act as a stabilising force in the legislative process.

However, the original method of electing senators had its shortcomings. One of the main criticisms was that it reduced the accountability of senators to their constituents. The process of selection by state legislatures was often plagued by corruption, partisanship, and lengthy delays, leading to Senate vacancies and undermining the efficiency of the legislative process.

The call for a constitutional amendment to provide for the direct election of senators gained momentum in the late 19th and early 20th centuries. The Seventeenth Amendment, proposed in 1912 and ratified in 1913, marked a significant shift towards a more direct form of democracy in the United States. By empowering the citizens of each state to directly elect their senators, the amendment strengthened the connection between the Senate and the people, promoting greater accountability and responsiveness to the electorate.

In conclusion, the evolution from indirect to direct elections for senators reflects the evolving nature of American democracy. While the original constitutional design sought to limit majority rule and protect federalism, the adoption of the Seventeenth Amendment demonstrated a changing understanding of democratic representation. This amendment stands as a testament to the ongoing efforts to balance the principles of federalism and popular sovereignty.

Filibuster-like mechanisms

The filibuster is a legislative device used in the United States Senate to delay or block a vote on a measure by allowing senators to speak for as long as they wish, thus preventing debate on the measure from ending. The procedure is not explicitly mentioned in the US Constitution but became theoretically possible after a change in Senate rules in 1806, and was first used in 1837.

The filibuster has been criticised for its negative impact on democracy, particularly as its use has escalated in recent years, slowing down the legislative process. It has also been used to block civil rights legislation and voting reforms. Some have called for its elimination, including former President Barack Obama, who described it as a "Jim Crow relic".

While the US Constitution does not explicitly mention the filibuster, it does include some supermajority requirements, such as conviction on impeachment requiring two-thirds of senators present. Additionally, the filibuster is limited by rulemaking statutes such as the Congressional Budget Act of 1974, which created the budget reconciliation process, and the Congressional Review Act. These measures are not subject to the 60-vote threshold required to invoke cloture and end a filibuster.

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