Mellman: Lynching and defective representation

It seems axiomatic that a democracy should respond to the will of its people. Yet, ours often seems to fail this test.

American government seems impervious to large majorities who want background checks for gun purchasers, an increased minimum wage, action to reduce the pollution that causes global warming and an end to this government shutdown, among others.

Those surprised by these failures of representation should consult the history of anti-lynching legislation.

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Sens. Cory Booker (D-N.J.), Kamala Harris (D-Calif.) and Tim Scott (R-S.C.) made it look easy, garnering unanimous support for a bill making lynching a federal crime. 

In fact, it wasn’t easy at all.

The NAACP created a special committee to promote an anti-lynching law in 1916, and since then, some 200 anti-lynching bills were introduced in Congress. Three passed the House; none cleared the Senate, until last month.

Here too, government has been wildly out of sync with the public.

When Gallup first polled the issue in 1937, 60 percent favored a  “law which would make lynching a federal crime.” Just 23 percent were opposed. 

Gallup asked about the issue three more times that year and support was consistently high, ranging from 59 percent to 62 percent.  

While Southern Democrats led the opposition, polls suggest their constituents too favored making lynching a federal offense.

Whether on lynching, or on background checks, or on government shutdowns, why do we face these defects in representation? What is the source of this radical disjuncture between what people want and what our democracy gives them?

Consider three of the possibilities.

First, the Framers built into our system a strong bias toward inaction. American government has more veto points than any other long-term democracy in the world. 

Contrast the U.S. and the U.K. If the House of Commons passes a bill, it becomes law. The House of Lords cannot stop it. In practical terms, the Head of State (aka, the Queen) can’t stop it. And Britain’s Supreme Court cannot overturn an Act of Parliament. Count one veto point. 

In the U.S., the House and the Senate can each veto the actions of the other, if only by inaction. The president can veto the joint action of both Houses of Congress. And our Supreme Court is empowered to overturn laws passed by Congress and signed by the president. Here we have four veto points. 

Other rules and procedures, notably the filibuster, render lawmaking even more difficult. 

This built-in bias toward inaction dampens governments’ responsiveness to public opinion.

Second, legislators only need to fear constituents when elections are truly competitive. 

In the first two-thirds of the 20th century, Southern Democrats didn’t worry about defeat by Republicans. Today, it’s gerrymandering and partisan sorting that produce uncompetitive inter-party contests much of the time. 

Most Democrats and Republicans these days are more concerned about primaries from their left and right, respectively, than about losing a general election. 

Absent real competition, the electoral mechanism designed to create legislative responsiveness is corroded.

Finally, despite all the polls, many legislators simply don’t know what their constituents really think. That’s not merely an artifact of the ‘30s, when polls were few and new. It remains true today, despite the proliferation of polling. 

One study found Democratic staffers in Congress underestimated support for background checks in their districts by 11 points, while Republican staff underestimated support for such a law by 49 points.

Similar levels of misperception were evident on four other issues.

Is it just staff who don’t get it? Do members themselves know better? 

An earlier study found that state legislators also misperceived their districts’ opinion in sometimes dramatic fashion. 

Given all the veto points, the lack of competitive general elections and misperception of the public will, it’s little surprise that it took 100 years for the Senate to pass an anti-lynching law. 

Perhaps the greater wonder is that Booker, Harris and Scott finally succeeded.

Mellman is president of The Mellman Group and has helped elect 30 U.S. senators, 12 governors and dozens of House members. Mellman served as pollster to Senate Democratic leaders for over 20 years and as president of the American Association of Political Consultants.