Balkinization: Getting Back on my Hobbyhorse: Re David Broder's critique of Congress

Getting Back on my Hobbyhorse: Re David Broder's critique of Congress

Sandy Levinson

David Broder has a column in today's Washington Post devoted to attacking Congress for its shameful record this session. It begins with the words "The disgrace of Congress..." and concludes as follows, after detailing multiple failures of Congress, including the breakdown on immigration reform:

"But House and Senate leaders never ordered the negotiations that might have led to agreement on a final bill, so in the end, little was accomplished.

That was the hallmark of this Congress. We have to do better."

I obviously agree with the description of Congress as a "disgrace" and the imploring hope that we not only "have to do better," but can in fact do better. But I continue to want to climb back on my hobbyhorse and suggest that the reasons for the inability of Congress to get anything done (save passage of the disgraceful Military Commission Bill) has as much to do with our constitutional structures as the personal failings of Dr. Bill Frist, Speaker of the House Hastert, and other luminaries. The commitment of the US to what might be termed "strong bicameralism," putting to one side the disgraceful overrepresentation small states in the Senate, means by definition that each house has an absolute veto over the other. The only way to break such impasses is not through some kind of plausibly democratic process--e.g., Congress meeting in joint session, engaging in great debates, and voting up or down on deadlocked bills, with each Representative and Senator having one vote--but, rather, by an ever-more undemocratic turning over of legislation to conference committees whose decisions are then rubberstamped by senators and representatives who often will not have read the final bills in question.

And who, incidentally, gets to engage in the "negotiations" of which Broder speaks, at least in the modern Congress? It is most definitely NOT Republicans and Democrats alike. Instead, as we have seen so many times, it is between House and Senate Republicans, with Democrats entirely cut out of the process. And, once the conference committees agree, there is no practical likelihood of anything resembling deliberative consideration of their handiwork, however much it varies from what either the House or the Senate actually voted for. If this is "democracy," then I'd like to know what "government by oligarchy" would look like.

"We are a republic, not a democracy." As a matter of fact, because of our 18th century structure, we are neither. We have a political system that is rightly mistrusted (and for many despised) by well over half of our fellow citizens, if one looks at approval ratings for our basic institutions. As much as I hope for a Democratic sweep next month, it is foolish to believe that the approval rate for Congress will be much higher than the present 22% two years from now, because no rational person can believe that a Democratic Congress would, even if had the programs in mind, actually be able to get them through the House and Senate (as Republicans would return to the filibuster), not to mention the ability of George W. Bush to exercise his veto power to preclude any significant attacks on the Bush legacy of misgovernment. As I heard on the radio only this morning, it is altogether rational that more people vote for American Idol than for the Congress, because they know that their vote makes stunningly little difference with regard to the prospects of bringing about desirable political change. But, as many of my critics point out, that is just what James Madison and his friends desired. I'm not comforted.

Posted 11:51 AM by Sandy Levinson [link]

Comments:

I think that the 2003 (or thereabouts) Congressional attempts to end the travel restrictions to Cuba might have been a good example of this American style oligarchy.

Both Chambers had attached to the Agricultural appropriations bill an order telling OFAC not to enforce the restrictions.

But the language was completely struck in Conference, meaning that after the vote Congressional leaders thwarted the will of their members.

I was surprised at the time, because, if memory serves, both houses were controlled by Republicans. What’s the point, I thought.

Now, I see that their actions indicate a contempt for the democratic process.

# posted by

redwood : 1:51 PM

The constitutional structure of the government is oligarchical. The history of its founding impelling, cobbled together ad hoc by some history-versed elites longing to create a new world embodiment of the progress made at such ventures in the old royalist schools on the Continent; whereas, here it was gunpowder and the aboriginal peoples succumbed. A tale oft told. About 2/3 of the residents then had no suffrage; and the elites who wrote the founding documents, the most adroit politicoes among that remaining 1/3 of the populace.

Segue a moment fast forward to December 2000. As Lyle Denniston colorfully depicted, the Supreme Court neighborhood looked like life was in abeyance in some green zone with cameras and Justices. At issue whether to let the FL legislature appoint all Republican electors to its delegation to the electoral college.

Ostensibly, we trust this poll of 1/5 approval (~"22%") of congress. Suppose we only accepted a poll as verifiable if it were reported formally by Diebold; alternatively, by the Nielsen rating organization; or even the college board. Maybe we could trust an agency which had a wide charter, politically susceptible to taint but nevertheless a fairly stable entity, for example, EPA, FDA, DOE, SEC, or congress' own office of the comptroller of currency.

I see our epoch as moving beyond nation polity; after all, that is what secular humanism sought in various ungainly ways as it permeated Continental governments. The internet is moving these issues forward apace, personally for participants, and osmotically for the non-oligarchs. Interestingly, many of the leaders in this intellectual interchange are independent; integrated within their communities, yet, every bit as originalistic as were the founders of the nation.

Suppose one stood at the gateway to the world series, a nascar event, or the superbowl and asked spectators as they left after the match what they thought of congress.

Compare that likely meager favorable outcome to the demographic reported by a pollster stationed on a street corner on a brisk autumn day near Fanueil Hall.

Often I see congress as composed of the local neighborhood business people who looked to get elected and avoided payola scandals as best they could. Ours is a mercantile outlook on fame in politics. There have been individuals, and brief moments of brilliance; but our system seems to rely more on a bulky center with a fulcrum set far advanced compared to that part of the world in which our political tradition had its origins.

If all the columnist finds is a supportive 2/11 of the populace in favor, his report expresses only the quality of his measurement method.

Conference committee: Sen. JBiden had some remarks about that last year, that it had become dismissive of bipartisanship which was the prior norm. In response I wrote his office, but mine was an email for the recycle bin, evidently. I would imagine a careful chronicling of the NeoConFerence committee conduct of business these past six years would make an intriguing history, besides being a worthwhile research project to develop.

# posted by

JohnLopresti : 2:10 PM

Any system can break down, but academic discussions of the relative strengths of one or another are irrelevant at the moment.
Any system you might argue for would be predicated on checks and balances. Our system as it exists is predicated on checks and balances. The fact that a large number of people in this country -including large numbers of the educated elite- understand neither the moral foundations nor the logic of such things is more dangerous to our future than the 18th century foundations of our present system.

Technocracy -"the government or control of society or industry by an elite of technical experts."- is not a republican form of government. The Weimarization of the political culture of this country is held in check not by radicals or reformers but by popular culture.

In order to understand checks and balances one needs to understand one's own foibles, one's own capacity for delusion. What kind of human being writes these words?

"Shantytowns might well be more creative than a dead city core. Some of the best Brazilian music came from the favelas of Salvador and Rio. The slums of Kingston, Jamaica, bred reggae. New Orleans experienced its greatest cultural blossoming in the early 20th century, when it was full of shanties. Low rents make it possible to live on a shoestring, while the population density blends cultural influences. Cheap real estate could make the city a desirable place for struggling artists to live. The cultural heyday of New Orleans lies in the past. Katrina rebuilding gives the city a chance to become an innovator once again."

How can an author not reread what he's written and laugh at the criminal absurdity? Answer: Only an author of Rumsfeldian arrogance and self-absorption, but in this case one nonetheless taken seriously[!] by many of those who spend there days screaming for the impeachment of Rumsfeld's employer. What does that fact imply about our present situation as a country?

# posted by

D. Ghirlandaio : 4:12 PM

The operations of a legislative body create a real challenge for democratic theory. At the risk of telling everyone what they already know, let me step back a bit and talk about what it means to operate a democratic system.

In the narrow sense, I'd say that none of your examples is undemocratic. If one house votes a particular way, it's only enforcing its own majority vote when it insists on that result. If a compromise is negotiated in the back room, then the eventual agreement on that compromise likewise receives the majority vote of both houses.

The problem is not that these practices are undemocratic, the problem is that when we talk of a democratic "system" we use the phrase to describe different scales and different time frames. Let me elaborate on both of these.

Time frame first. In the literal sense, "democracy" need recognize no rule other than majority rule. This, however, doesn't really capture what we mean, because the majority can decide to take actions which clearly undercut democracy in the long run. For example, a majority could decide to disenfranchise the minority for the future. When we talk about democracy, we mean not just a literal system of majority rule, but one which continues operating as a democracy into the future. There must be "meta-rules" -- rules other than "the will of the majority is in all cases to prevail" -- which preserve the continuing function of democracy.

Now to scale. In cases of representative democracy, we use the word (or should use it) only when the representative body generally implements the policies of those represented. The representative body is not an end in itself, it is a means to the larger democratic goal.

What we want, then, is a system which operates "democratically" at the scale of the nation as a whole (when we speak of Congress) or of the state as a whole (when we speak of the legislature). We also want that system to operate not just today, but tomorrow as well.

In order to accomplish this, we have to place restrictions on the ability of the legislative branch to operate "democratically" in the narrow sense of conducting its internal operations. What policies can we put in place to achieve this goal?

One, which you've mentioned many times and with which I completely agree, is to open up the legislature so that it more accurately represents the citizen body. This means proportional representation under a realistic census count; it means an end to partisan gerrymandering; it means implementing policies to encourage voting and discourage fraud in the ballot count and attempts to intimidate or exclude voters. Part of the solution surely is more democracy at the relevant level.*

But it means more than this. A system isn't truly "democratic" unless it's also deliberative. The reason for this should be obvious -- majority rule only makes sense if the judgment is considered. This means that the minority has the opportunity to persuade the majority to decide differently, not just now, but in the future as well (the time component).*

Let's assume we all agree on these principles. The problem is enforcing them when the majority party within the representative body has every incentive to abuse its power. The very abuses you cite are themselves evidence that we can't rely on majority factions not to abuse their power. These were entirely predictable; Madison did predict them in Federalist 10, 49, 51, etc.

The answer is that sometimes we must enforce policies which appear undemocratic in the short run or at the scale of Congress in order to preserve democracy at a national scale or longer time frame. I see no way to enforce those policies at the level of Congress itself.

The ONLY solution is to place checks on those abuses which operate outside the confines of Congress itself. For example, we might grant the Executive the right to veto laws in order to assure the minority hasn't been abused. We might give the Judiciary the right to strike down laws which infringe the "meta-rules" such as freedom of speech, equal protection, apportionment, etc.

Madison gave us these solutions (I'm exaggerating somewhat, of course). Experience shows us the need for others. For example, Brett suggested an amendment requiring that every bill be published, in writing, at least 5 days before the final vote. That seems very reasonable; undoubtedly there are others. In implementing these checks, though, we can't lose sight of the fact that they are undemocratic in some sense.

One reason why I respect Madison so much is that he so clearly understood that democracy requires a balance. Sometimes we weight the scale of more democracy -- we expand the sphere. Sometimes we weight the scale of limiting democracy on one level in order to enhance it on another -- "by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places."

*Free speech as an essential component of democracy serves as an example of the inherent conflict between the time scales of democracy. In the short run, if a minority debates too long, it prevents the majority from acting at all. In the long run, though, some extent of debate is essential. Similarly, eliminating partisan gerrymandering infringes on majority rule today and on one scale in order to assure it tomorrow on a larger scale.

# posted by

Mark Field : 6:50 PM

"For example, Brett suggested an amendment requiring that every bill be published, in writing, at least 5 days before the final vote."

I think this is an excellent suggestion. I suppose that one might want to have a 2/3 waiver provision (or something like that) in those truly rare instances when time is of the essence, but it's difficult to see any principled argument against this kind of "timely notice" provision.

# posted by

Sandy Levinson : 8:23 PM

"that is just what James Madison and his friends desired"

It does not seem to me true that he desired the current situation. Well, not to this extent. The Federalist repeatedly referenced the people at large and their needs. And, it also supposed a more reasonable and principled set of representatives than we currently have.

To the pt of that being naive, as well as the fact political parties etc. made original intentions and expectations obsolete or seriously altered in practiced (to reference Brett, a comment on what Congress can conceivably do -- w/o taking into consideration things like party control etc. -- is honestly ill-advised at best) constitutional tweaking (five day rule etc.) makes sense.

The New Deal brought great change ala Bruce Ackerman w/o formal constitutional amendments. New blood might just do that -- the Constitution is not to blame per se for Mark Foley and the majority's CYA moves (nor is this new -- John Dean over at Findlaw listed many more sex scandals) -- but perhaps amendments are necessary.

They generally only come in great moments of change where the amendments are deemed felt necessities. This often involves a lot of pain. Hopefully the pain will result in something valuable now. We as a society have been asleep too long.

Like a drunk, we need to hit bottom, I guess.

# posted by

Joe : 12:22 AM

Bottom line, crooked pols will find some way to twist the system, even if we make it harder for them to do so. Thus, we have various cases where some token Dem (Lieberman, Nelson etc.) makes things "bipartisan," including in conference. Fixes are welcomed, but on some level, the personnel is the problem. The same Constitution was in place 15 years ago.

# posted by

Joe : 12:26 AM

"The same Constitution was in place 15 years ago."

but the "same society" wasn't (the many well-known examples left as an exercise for the reader). in essence, I agree with joe that tinkering with the specific structures of our "democracy" while ignoring those societal changes is a classic forest-trees problem.

-charles

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