Balkinization: A couple of observations on next Tuesday

A couple of observations on next Tuesday

Sandy Levinson

1) If the Republicans keep the Senate, it will not be because a majority of American voters prefer a Republican Senate. It will, instead, be because of two of the hard-wired stuctural aspects of the Constitution: a) The absurd overrepresentation of small states. It continues to appear likely, for example, that Democrats will win seats in two large states, Pennsylvania and Ohio, and even 3-4% victories will add up re the absolute vote totals. And, to be sure, Democrats will probably pick up seats in two small states, Montana and Rhode Island and and retain a seat in another small state, Vermont. But recall that over the last three election cycles Democratic candidates for the Senate have collectively won 3 million more votes than their Republican opponents. The advantage that Republicans have in the Senate is entirely a function of small state overrpresentation. If I had a ranch, I'd bet on a Democratic victory in the overall popular vote total, even if the Iowa prediction market turns out to be correct re continued Republican control of the Senate. b) The fact that only 1/3 of the Senate is up in any given election. This means, almost by definition, that the impact of electoral "tsunamis" is limited re the Senate. I have no doubt that a lot of Republican senators are absolutely delighted not to be running for re-election this year. It remains to be seen whether 2008 will be a more attractive year for them.

2) Brian suggests that not much will change with a Democratic victory. He's right, but not only for the reasons he gives. What will be important about a change of control will be some awful legislation that is now sure not to pass, which is no small matter, and the ability to engage in some real oversight. But there is no possibility of any significant legislation being passed by a Democratic Congress, again for two reasons: a) the filibuster in the Senate, which the Republicans will use shamelessly (and shamefully) to block any innovate legislation; and b) the presidential veto. The best one can hope for is a variety of votes on symbolic issues, such as the minimum wage. But one cannot seriously hope that there will be a real attack on the harmful things done by this Administration. If it takes legislation, it can be easily fended off by the Republicans. And if it takes reversal of administrative regulations, it takes electing a president, which is still extremely dicey so far as Democrats are concerned.

This won't lessen my jubilation if the Democrats win next Tuesday. It should simply be kept in perspective.

Posted 10:14 PM by Sandy Levinson [link]

Comments:

Why have a House and Senate if they should both, in your view, be elected through similar means? Why not a unicameral system?

# posted by

humblelawstudent : 11:16 PM

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# posted by

Joe : 11:39 PM

I don't know how "similar" the author wishes to make them. Thus, we can conceive of a way to formulate a Senate that represents states which is not as skewered as much (note his use of a modifier) as it currently is.

It is useful to note, however, the states currently are required to have equitable apportionment in both houses, but still tend to favor bicameralism.

States to my knowledge also generally don't have tiered voting for the Senate, having only a third open each election cycle. Is this really required to have an upper house, or is the house in place for various specific purposes that does not necessarily require it?

Finally, some skewering is present in the House as well. One, each state is required to have at least one member, who only can represent that state. This necessarily leads to some unbalances. Second, the district method, not mandated, also does. Third, the much maligned current method of districting.

Again, at least some of this stuff can be changed w/o altering the functions of the lower house.

# posted by

Joe : 11:48 PM

I'm not sure Professor Levinson has quite understood Brian Tamanaha's post.

# posted by

Psittakos : 12:11 AM

There are some valid reasons to discourage electoral tsunamis. Newt Gingrich and the Contract for America come to mind.

If a party program has merit, the momentum behind it will last till the next electoral cycle. If it is the product hype, fearmongering and the sort of "transitory passions" Madison liked to condemn, it is just as well that we put a brake on it.

# posted by

Enlightened Layperson : 12:40 AM

Only someone isolated in an ivory tower would call increasing the minimum wage a "symbolic issue."

# posted by

Zathras : 10:39 AM

1) One can have a bicameral system elected through different processes (larger areas for senate, longer terms for senators) without accepting the legitimacy of the ridiculous overrepresentation of small states. I note, for the record, that this kind of overrepresentation is precisely what the Supreme Court declared unconstitutional, with regard to the "little federal" systems of representation in most states, in Reynolds v. Sims. I do not as a matter of fact support unicameralism in a country as large as the US. What I oppose is giving 12 states with approximately 5% of the population 24% of the vote in the Senate.

2) There may be good reason to try to limit the impact of electoral "tsunamis." I was making an analytic, not a normative point, in noting the impact of the staggered terms in the US Senate. I'm not aware of any state, incidentally, that has three-tiered staggered terms. I believe that quite a few elect half their state senates ever two years.

3) I understand Brian's point to be that the American political system may be mired in corruption--i.e., the impact of big money and lobbyists--so that the impact of the election will be relatively marginal, given the "permanent government." There is a lot to this. But my major interest these days is pointing to "hard-wired" structural impediments generated by "our undemocratic (and dysfunctional) Constitution." Brian's analysis suggests that even formal constitutional change of the kind I advocate might not help all that much. That may be right, alas.

# posted by

Sandy Levinson : 10:49 AM

Re Zathras's comment about the minimum wage: I advocate raising it, and I have no doubt that it would make a positive difference for the those Americans--a small minority of the overall workforce) who would be affected by it. Pushing a rising minimum wage also has the added advantage of exposing Republican opponents as mean-minded Social Darwinist louts. That's one of the ways that symbolic politics operate. But, relative to the problems posed by income inequality in America and the dangers posed by no medical insurance, collapsing pension plans, etc., making raising the minimum wage the centerpiece of the "Pelosi program" does not speak well for Democratic aspirations. (Of course, given my own analysis, it's also possible that raising the wage is the best that a Democratic majority can reasonbly expect to achieve, alas.)

# posted by

Sandy Levinson : 10:57 AM

I think a lot of mainstream economists who have done empirical research on the effects of minimum wage laws on employment and entry into the workforce will be surprised to find that the questions have been settled (and that those who do not agree that a rising minimum wage must always be good for the poorest members of society are "mean-minded Social Darwinist louts"). I don't know what the minimum wage should be. I do know that a lot of serious research has been done on this question in the United States and in European countries. Wouldn't we be better off if our politics embraced intellectually honest discussions of economic issues?

# posted by

Psittakos : 1:24 PM

I believe that recent research has fairly conclusively refuted the proposition that there are significant job losses attached to the imposition of minimum wage requirements. This is not, obviously, the same thing as saying there are NO job losses, which there may be.

I'm also more than happy to concede that there might be good alternatives to raising minimum wage laws. I don't see the contemporary Republican Party expressing serious interest in doing anytning for those at the bottom rung of the economic ladder other than saying "work harder" and let the fittest survive.

# posted by

Sandy Levinson : 1:47 PM

Professor Levinson: I don't see the contemporary Republican Party expressing serious interest in doing anything for those at the bottom rung of the economic ladder other than saying "work harder" and let the fittest survive.

I would argue those last four words could also be put in quotes. Darwin's work has been hi-jacked into a pseudo-scientific gloss for "might makes right." That's a bit of intellectual chicanery who's time has come and gone; time for us to recognize it for what it is and dispense with it. Little wonder, then, that the folks abusing the social Darwinism metaphor in support of their claims that might makes right have no sense of duty to those without might, measured either in arms or voting stock. Arguably this bit of conceptual hard-wiring is even more foundational than the errors you see in the Constitution, and I would think refuting might-makes-right apologists like Coase and Posner would be at least as valuable from an institutional point of view.

# posted by

Robert Link : 2:09 PM

I would argue those last four words could also be put in quotes. Darwin's work has been hi-jacked into a pseudo-scientific gloss for "might makes right."

Darwin himself never used the phrase "survival of the fittest". That originated with Herbert Spencer, the perfect pseudo-scientist for the Republican party.

# posted by

Mark Field : 3:27 PM

On the minimum wage issue, my point is simply that we don’t hear anyone in politics today talking about policy issues seriously. Clinton was able to do that. Obviously, well-informed economists can disagree about where the minimum wage should be set. It cannot simply be that higher is better. The argument against a too high minimum wage is not that poor people should work harder to survive or face the consequences. It is that the least-advantaged members of society do, in fact, need to be able to find relatively low-paying training positions in order to enter the labor market –- that a too high minimum wage poses a barrier to entry. No mainstream economist would argue that this does not happen at some point. It should go without saying that the hope is that those who enter the labor market at the minimum wage level will eventually move well beyond it. In the end, the argument is about where the right balance is found.

Even though the Democratic Party is out of power now, and the Republican Party is clearly not an appealing alternative, people still need to push Democratic politicians to say something intelligent -- to demonstrate that they understand what classical liberalism is about, first, and that they are prepared to mount serious arguments for their programs. Otherwise, we will just see more of the politics of dumb and dumber.

# posted by

Psittakos : 3:27 PM

Mark Field: Darwin himself never used the phrase "survival of the fittest".

Yo, thanks for the assist. I don't pretend to have all my sources as well managed as I should, and I really appreciate a chance to add this kind of thing to my repertoire. Peace.

# posted by

Robert Link : 3:47 PM

Psittakos:

Where do you find all these folks entering the market at minimum wage and moving far beyond it? A large chunk of the population lives on minimum wage to 2x minimum wage, and that market is set by the minimum wage. They would live on whatever they can get. Putting it in terms of "training wage" really minimizes the importance of the minimum. This country is full of janitors, lawn people, waitresses, etc -- the market price for these services is set by the minimum, and many of these folk never improve their station in life. If they could, they would have gotten their law degrees in the first place.

Most people have very little "class" movement, which is why the minimum is essential. Of course, you are correct that it can't be set beyond what the productive ability of the economy sets (which is not the same as the minimum that would be set by the market, which is close to zero).

# posted by

jojo : 4:39 PM

Ronald Coase does not deserve to be called a "might-makes-right apologist." Perhaps you have him confused with Thrasymachus

# posted by

Psittakos : 4:42 PM

jojo:

You're right. Who says the poor will always be with us? Let's just set the minimum wage at $200,000 per year and be done with the problem.

# posted by

Psittakos : 4:57 PM

Psittakos: Perhaps you have him confused with Thrasymachus

Or perhaps we just read "The Problem of Social Cost" differently? (Thanks, however, for the classics lesson.) Peace.

# posted by

Robert Link : 7:39 PM

As an aside, I did pass the Professor's new book today, doing a bit of perusal. His comments as to the Senate clearly are better understood after one checks out the section on the Congress.

Madison, I believe, in the Federalist referenced the unanimity necessary to replace the Articles of Confederation. Rhode Island after all didn't show up to the Constitutional Convention. He thought it absurd to be compelled to be held hostage by representatives of 1/13 of the population.

His words appear to be one answer around the Art. V. problem as to the Senate, esp. since the fraction of let's say Wyoming is even smaller than that.

# posted by

Joe : 7:50 PM

It is interesting that SLevinson selected a metaphoric ranch for the wager on the post-election US Senate majority. Having resided on such a ranch many years, I might proffer that grasping the merit of open space preservation as a meaningful component of our nation taken as a unitary entity, is difficult to express, perhaps. For me it is sufficient that the net effect of the Senate's representation schema is its cohesive effect upon the legislative branch binding it into recognition that vast lands are of value for more reasons that statistical square area. We know the senate is the ostensible home of the cooling process in government. One supposes, as the centuries since our founding pass, legislature might evolve toward the British paradigm wherein nobility retains figurehead status but the lower chamber has more of the control than upper chamber does. Theirs is a perilous choice because of its inequality designed into the operations of legislature.

Land management is a complex issue. A minimum wage increase might be an interesting innovation applied in urban zones, but agrarian interests likely would resist an economic tightening if labor costs in already marginal open land management regimes were to incur escalating need for outlays to pay workers. Several effects would be likely; one of these is already seen, mass production technology applied to land management; another effect likely would be land use type conversion. Much of this complex of issues would be best elaborated in a matrix of genuinely protective environmental regulations, but these latter seem to be the final finesse put on laws rather than a prime concern. In other words, open lands remain viewed as objects rather than as an integral part of the planetscape within our national boundaries. Perhaps this appears extrapolative. Well, I am for increasing minimum wage; it would mean rollback of some Reagan social deconstruction, though. If we are fortunate the House reconfiguration in the 2006 elections will begin that process, now 25 years remedially.

# posted by

John Lopresti : 2:04 PM