BBB and a d(D)emocratic mandate

In the wake of Joe Manchin’s refusal to support the Build Back Better Bill, there has been lots of recriminations of our constitutional system. For instance, this tweet calls for structural change because Manchin was able successfully to oppose the rest of his party. “Healthy democracy” is said to require that the 50 Democratic Senators in an evenly divided Senate completely get their way. After all, Manchin is joined in opposition by 50 Republicans. Might we not ask the opposite question: what type of constitutional democracy is it when 50 Democrats can win on everything despite the opposition of exactly the same number on the other side? Holding the levers of power almost completely despite the extraordinarily close divide, the Democrats can’t abide by one of their own not being willing to go along. But, as Mann and Ornstein have been saying for the last several years, the American constitutional system is not designed as a parliamentary democracy. Congressional members represent the individualized interests of their constituents, not their party. They ought go along with their party to the extent that it comports with their constituents’ interests. Manchin’s only betrayal would be failing to represent his constituents rather than failing to toe the Democratic party line.

This points to a constitutional logic in which most legislation emerges from an adjudication of congressional interests–an attempt to represent in the legislation all of the various interests across the nation. By accepting presidential mandates, our constitutional system has adjusted to the reality of an increasingly national electorate with more unified visions of the public good.

When Presidents like FDR win with overwhelming landslides, they have the authority to compel members of their party to go along with their governing vision. Although not having a FDR-level landslide, a President like Barack Obama also had something of a mandate to the extent that he campaigned on the basis of a clear governing agenda. The public’s vote for him, given this agenda, signals to members of Congress that this is what the people want.

But Joe Biden didn’t really campaign on the basis of a governing agenda. Given his campaign, he has the afull uthority to not be Donald Trump. Many of those who voted for him were definitely not signing up for the ambitious legislative goals in BBB. To pass BBB requires that members of Congress and the President slam it through the system despite all of the pressure against it and despite no sign that the public is for it. Governing by bare majority is not real democracy. Of course, neither is congressional obstructionism. But congressional obstructionism becomes democratically legitimate to the extent that it best approximates what the people as a whole want. If Manchin is wrong in opposing it, the public can exhibit that by electing a stronger Democratic majority in 2022 ready to carry out these kinds of bills.

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