In civil rights and American democracy, Congress’s role looms large

As state legislatures threaten American democracy with gerrymandering, voter suppression and election subversion, congressional inaction threatens to reprise its past institutional failures. Each moment of backsliding on multi-racial democracy has been led not by Congress, but by state governments, enabled by the president and Supreme Court. Although Congress hasn’t led the way in democratic backsliding, it has been guilty of inaction, often as a result of filibusters. Today, American democracy once again faces this very risk of congressional inaction.

Many are worried that Congress isn’t up to the task of protecting multiracial democracy in America. The public is sour on Congress, with polls even finding Congress less popular than head lice. In historical narratives, Congress is seldom cast in a positive light, particularly when we are considering moments of progress on racial justice. Instead, it has been the president and the courts that have received the lion’s share of credit for changes in government policy, with accounts occasionally, but not often enough, making clear the central role of movement activists in pressuring these actors. Even so, each moment of successful policy action for democracy has required affirmative, positive action by Congress.

Brown v. Board of Education (1954) and President Lyndon Johnson’s push for the Civil Rights Act, alongside the dramatic push from movement activists, are generally credited with ending Jim Crow, just as Lincoln’s leadership in the Civil War and in the push for the 14th Amendment is highlighted. Although the president and courts played a significant role, each of these cases actually depended critically on congressional legislation to succeed.

And when it comes to periods of democratic backsliding and reversals, it has been the president, courts, or both, that took the lead in allowing state and local actors to undermine democratic equality, especially the civil rights of Black Americans. President Andrew Johnson rolled back the first wave of efforts to help formerly enslaved people in the South in 1865-66, only to be turned back (temporarily) by a Congress led by Radical Republicans. Decades later, as Jim Crow was expanding through Southern states, President Taft proclaimed that “it is not the disposition or within the province of the Federal Government to interfere with the regulation by Southern States of their domestic affairs.” His successor, President Woodrow Wilson resegregated the federal government with devastating consequences. More recent presidents, including Presidents Reagan, W. Bush and Trump, each nominated Supreme Court justices who reduced national enforcement of voting and civil rights. 

The Supreme Court is revered for its civil rights rulings in the 1950s and 60s. But this Warren Court period was an anomaly; the judicial branch has, more often, represented a “hollow hope” for the cause of multiracial democracy. Beyond the infamous Dredd Scott ruling (1857), the Court undermined Reconstruction in the 1870s and 80s, forestalling the use of the 14th and 15th amendments to protect Black voting rights, and overruling the Civil Rights Act of 1875. Its Plessy v. Ferguson decision upheld “separate but equal,” paving the way for institutionalized Jim Crow. In dramatically narrowing the reach of the Voting Rights Act, today’s court is reprising a familiar role. 

State governments might receive even greater veneration than the president and courts. To many, state level politicians appear less polarized and more responsive than those in Washington, D.C.. But it was state governments that legally enforced slavery and Jim Crow — and are leading the threats to democracy we see today.

Congress’s role in these failings, from Reconstruction and Jim Crow to modern democratic backsliding, has characteristically been one of inaction — sins of omission with devastating consequences. As mounting southern white violence suppressed Black voting, minority obstruction helped block passage of a new enforcement act to defend voting rights in 1875, and then forced advocates to water down the mild civil rights it managed to pass. Fifteen years later, Democratic obstructionists filibustered the last gasp of Reconstruction, an elections bill to fight southern voter intimidation. The bill passed the House in 1890, but a bid to change the Senate rules to impose majority rule failed narrowly when a handful of Republicans sided with Democrats to preserve the filibuster. 

When Congress fails to act, it signals to other political actors that all bets are off, that they have free rein to restrict the right to vote and make democracy narrower. In the ensuing decades, southern state governments adopted numerous laws and constitutional amendments disenfranchising Black voters, abetted by the Supreme Court’s narrow reading of the Reconstruction amendments. The filibuster of the elections bill stymied the last serious national effort to defend voting rights for more than half a century. 

The modern U.S. Congress has numerous failings, and there have been important moments of executive and judicial action. But the portrayal of Congress as the institutional laggard is at odds with its historical role in protecting and expanding the prospect of multiracial democracy. When one examines America’s tortured history on civil rights more fully — attentive to both moments of progress and reversal — the key institution in many ways is Congress. And that context underscores the stakes of the current Senate fight over legislation to curb voter suppression. 

American democracy is under threat, and all signs point to Congress as the pivotal actor. As the Senate negotiates over the For The People Act and alternative bills to protect voting rights, reduce gerrymandering, and prevent election subversion, will we see the “First Branch” live up to its historical potential as a democratic champion? Or will its inaction — an echo of the Senate’s failure to defeat the filibuster of the 1890-91 Elections Bill — lead to a diminished American democracy?

Jacob M. Grumbach is assistant professor of Political Science, University of Washington.

Eric Schickler is professor of political science and co-director, Institute of Governmental Studies, UC Berkeley.