David H. Levitt

A Thin Majority Does Not a Mandate Make

Similar scenarios are occurring in both the United States and Israel. The electorates are divided nearly evenly and polarization reigns. Thin majorities are beholden to fringe elements in order to hold those majorities, giving excessive power to those fringe players. But one would think from the actions of both governments that they had won in landslides. This needs to change.

These two excellent articles, by Daniel Gordis (well-worth your time and thought) and by Haviv Rettig Gur (pointing out that even among Likud voters, which is pressing the current judicial “reform,” more oppose the proposition than support it – and giving a superb summary of Israeli history on why Israel has no constitution but needs one for checks and balances), highlight the kind of nuanced and principled discussion that is so needed, and so lacking.

In Israel, the far-right bloc holds a 4 seat majority, with only 64 seats in the 120 seat Knesset, having won the popular vote by a mere 30,000 votes out of 4.7 million votes cast. And even that majority arose only because some 300,000 votes did not count under the Israeli electoral system in that they were cast for parties who did not meet the threshold of 3.25%, which would have given each such party four seats. Had even one of those parties crossed the threshold, Benjamin Netanyahu would likely not now be Israel’s Prime Minister; Israel could well be facing yet another round of elections. The election was hardly a pro-Netanyahu mandate.

In the United States prior to the 2022 election, the Democratic Party also had very thin majorities. In the House, Democrats had a majority of 220-212 (with 3 vacancies), thus only 2 seats over the 218 needed for a majority. The Senate was 50-50, with Democrats holding the majority only because the Vice President could break ties. In the new 2023 Congress, the Republicans hold a slim majority in the House (222-213), while the Democrats slightly expanded their majority to a still razor-thin 51-49, although two of that majority (Senators Manchin and Sinema) remain dissenters from party orthodoxy on a number of issues.

Yet despite the split electorate, bare majorities, and pledges to represent “all” citizens (including those who did not vote for them), government leaders have proposed (and sometimes enacted) sweeping changes and measures that nearly half of the voters strongly oppose.

This is most pressing in Israel at present, where the Netanyahu government is proposing, for example, laws to remake the judiciary, to change the Grandfather Clause under the Law of Return, and more. When 80,000 people are motivated to turn out to protest such measures, that is something remarkable. And when the Prime Minister shrugs off those protests by claiming that “millions” voted for the proposed reform (pretending that “millions” did not also vote against them), something fundamentally wrong is in play.

It is no different in the United States. During the Biden Administration, Democrats used their thin majorities (and nearly lock-step, party-dictated voting with little dissent) to enact major and highly disputed legislation, often using “reconciliation” in the Senate to avoid the need to obtain the otherwise needed 60 votes to obtain cloture, including the $1.9 trillion American Rescue Plan in 2021 and the Inflation Reduction Act in 2022. Many Democrats, prevented until now only by Senators Manchin and Sinema, urge doing away with the 60-vote cloture rule, known as filibuster, so they can use their thin majorities for even more sweeping changes that are highly contested such as eliminating the Electoral College, admitting Puerto Rico and Washington, D.C. as states, and packing the Supreme Court. The expediencies of current policy initiatives often include little thought about the possible consequences – as in 2013 when then-Majority Leader Harry Reid presided over the use of the “nuclear option” for mere-majority approval of nominations on a 52-48 vote, only to have his party hoist on its own petard in 2017 when a Republican Senate majority used the same principle for the Supreme Court, opening the way for the Senate to approve then-President Trump’s conservative nominees.

Thus, we see that using thin majorities to make far-reaching changes is not only undemocratic, but bad policy. It sets precedent that political opponents use to their advantage when they are next in power – as inevitably occurs. In Israel, it appeared that the Labor Party would be in control forever, but now it is in disarray. It seems now that Israel is leaning solidly to the right, but that is not a stone-written Commandment either. History teaches that changing the rules now so that the bare majority can establish its current but strongly contested priorities will almost certainly be used by the other side when they have their turn. The whipsaw of the tyranny of the majority is not in the public interest.

Indeed, the tyranny of the majority and protection of rights of minorities is a fundamental tenet of democracy. Obviously, the will of the majority is a basic principle, but preventing that will from trampling others in the society was one of the main evils that the Founding Fathers in both the U.S. and Israel took pains to include in their founding documents. Even when a governing party has a substantial majority, it still must consider in good faith the rights and positions of its opponents.

This is exacerbated when the government is supported by a thin majority – because it empowers fringe elements. In the United States, the “Squad” enjoys power in the Democratic Party far in excess of its number of seats; as we saw in the squabble over the selection of Kevin McCarthy as Speaker of the House, the Freedom Caucus has gained substantial concessions and committee appointments that would not otherwise have granted – and this therefore impacts the overall positions of the Republican Party.

In Israel, fringe players such as Ben-Gvir, Smotrich, and Maoz wield their majority-giving sword to obtain plum ministries and obtain benefits for their respectively small constituencies, without thought about how what they say impacts the rest of Israel or Israel’s standing in the larger world.

In both countries, the concept of compromise is rarely voiced. Representatives elected from “safe” constituencies feel no need to compromise, whether from Congressional districts that are solidly Republican or Democratic in the U.S. (one of the reasons that AIPAC, for example, decided to participate directly in supporting candidates in primary elections, since the general elections in some districts are not seriously contested) or whether politicians like Smotrich can assert that his voters do not care that he is a homophobe.

Which brings us back to the articles by Daniel Gordis and Haviv Rettig Gur linked above. Moderates (who are, after all, the majority) and thinking people of good will must demand – demand – that their leaders think beyond the current moment and political expediency. If, as Haviv Rettig Gur points out, 47% of Likud voters oppose the current Likud-proposed judicial reforms (against only 42% who support them), those voters have the opportunity – and obligation – to let their Likud MKs know, not just those from the Opposition. After all, the prior Bennett/Lapid government was taken down by a couple of defectors, causing the elections that resulted in the current Knesset. What would happen if three or four Likud MKs, now sworn in and already upset that ministries have been doled out to Maoz (for example) rather than to Likud members, defected from the coalition? Don’t such Likud members have the same kind of leverage, consistent with a plurality of Likud voters, as Ben-Gvir, Smotrich, and Maoz?

Again, the same is true in the United States. Kudos to Senators Manchin and Sinema for refusing the party-line where they had good faith disagreements with extreme positions that can have long-lasting and unintended consequences. While Republicans have crossed party lines in their votes more often than Democrats, too often they also give in to the worst elements of their caucus.

Nuance, thoughtfulness, good faith negotiations, consideration of the positions of others – the Golden Rule. Enough with party loyalty over what is best for everyone. Isn’t it time we demanded it?

About the Author
David H. Levitt practices intellectual property and commercial litigation law in Chicago, and is a pro-Israel activist.
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