Balkinization: Breaking down the vote

Comments:

Harry Reid, incidentally, was the one Democratic "no" vote, which makes me think that he was voting "no" for completely tactical reasons.

That's right. According to the LA Times, Reid's vote enables him to bring the issue back for a subsequent vote if he so chooses.

# posted by

Mark Field : 11:00 AM

Correct. See Senate Standing Rule XIII.

# posted by

Unknown : 11:32 AM

Prof. Levinson -

Your post erroneously suggests that Sen. Lieberman (I) of Connecticut is a Democrat. Although he sometimes calls himself an "Independent Democrat" these days, he is actually in the same category as Sen. Sanders -- an independent Senator who caucuses with the Democrats. I understand that sometimes it is simpler to use the shorthand of calling the D-caucusing independents in the Senate "Democrats" for convenience. But in this case, that shortcut makes the Democrats appear non-unanimous when they were in fact unanimous, which is enough of a difference that it is probably worth it to break out the "I" category from the "D" and "R" categories.

# posted by

JR : 6:21 PM

Cancel previous comment! My mistake -- didn't read the post carefully enough. Unlike so many reports today, this post admirably distinguished between D's and I's.

Sorry.

# posted by

JR : 6:23 PM

As you note, "60 votes were required to 'cut off' debate". That's what a cloture vote is: A vote to END debate.

Why, then, are you describing Democratic votes for a cloture motion as votes "in favor of the debate", and votes against it as being "against" debate?

Do you further a debate by ending it? Do you oppose debate by voting to continue it?

This language is positively Orwellian.

# posted by

Brett : 9:05 PM

Strange but potentially true. I guess it now comes down to whether or not the rules for debate that the Democratic leadership wanted brought to a vote without further debate actually would permit significant debate on the resolution.

Anybody know the details of those rules?

# posted by

Brett : 10:10 AM

I think the right term for the way the Senate operates is "Kafkaesque" rather than Orwellian. I think that all of us should be forgiven for not getting it entirely straight what "ending debate" means in the present situation. We have a situation in which a plurality of senators representing the vast majority of the country--I note that New York, California, Illinois, and Michigan, for example, have two Democratic Senators, whereas only Texas among the large states has two Republican senators--cannot prevail. I also note for the record, in order to forestall the inevitable postings about Democratic filibustering of judicial nominations, that the ostensible Republican majority in the previous Senate was an artifict of our unfortunate Constitution, since the 56 Republican senators in fact had received 3 million fewer votes, in the three elections before 2006, than did their Democratic counterparts.

# posted by

Sandy Levinson : 10:43 AM

Professor Levinson,

In your view of how the Legislature ought to work, I am unclear on what exactly protects regional and other minority interests? I just went over Federalist Nos. 10 & 51 with my students this week, and I was emphasizing the relationship between, size, regional interest, and preventing majority tyranny. I find the arguments Madison makes about these relationships fairly compelling, and it seems to me that you are indicating that we ought to either throw out or dramatically restructure this relationship - how?

# posted by

Steven Maloney : 2:19 PM

a) There is no logical distinction between "tyranny of the majority" c) and "tyranny of the minority." Tyranny is tyranny. Madison was certainly attentive to the former possibility and heedless of the latter. The response that tyranny of the minority can be overcome by majority rule fails, of course, if the minority is entrenched, as is true given the Senate rules. (I'll confess that I sometimes enjoy being part of the minority that takes advantage of such rules, but that's because I don't believe in unilateral disarmament.)

b) "Regional interests" are to be protected the way most other interests are protected in our system, through the play of politics. There are occasions, of course, for protecting particularly vulnerable (and worthy) minorities, but, with respect, residents of small states don't count as such a group, unless one buys into Jeffersonian animosity toward residents of cities and belief in the superiority of farmers. Just as athletes are the primary beneficiary of "affirmative action" programs at most universities, so are residents of small states the most significant recipients of "affirmative action" in the structure of our political system. Neither is defensible, though both are completely explicable given the corruption of "higher education" and the undemocratic nature of our constitutional order.

As I've explained elsewhere, the Senate has literally nothing to do with protecting "federalism" as such; for that, see, among others, the German Constitution and the organization of the Bundesrat.

c) My own view, also expressed previously, is that Madison should be taught only in intellectual history courses. He has nothing genuinely useful to say about our present political system. (That should certainly provoke a response :) )

# posted by

Sandy Levinson : 3:58 PM

My own view, also expressed previously, is that Madison should be taught only in intellectual history courses. He has nothing genuinely useful to say about our present political system. (That should certainly provoke a response :) )

I'm sure you mean that, as Chesterton said of Christianity, Madison's system can't be said to have failed because it was never tried. I'd agree with that.

# posted by

Mark Field : 4:48 PM

"heedless of the latter"

I'm not sure the value of rhetorical overkill. Madison tried to balance various forces, surely in somewhat artificial ways, but he did not merely support oligarchy.

He knew the majority ("We the People") had a role in a republic. He knew minority factions, esp. if they had the right balance on their side, were dangerous. He agreed the fact Rhode Island didn't want to play didn't mean a new Constitution should not be ratified.

In fact, he wanted a more democratic Senate, to my understanding. Did he not oppose the two senator rule at first, supporting a per capita system that favored VA at the time?

I also thought he supported a BOR to protect us. He had at least a FEW useful things to say about that, esp. religious freedom. Query ... is that not important in today's political situation?

Nothing?

# posted by

Joe : 5:35 PM

a) Yes. tyranny is tyranny, but you've yet to show how this is tyrannical. The Senate rules are written to slow decisions in order to allow further deliberation, which as we are currently demonstrating, occurs both on and off the floor. There's nothing inherently undemocratic about delays like this, unless you think that democracy is essentially preference-aggregation and that deliberation plays no role in our understanding of our preferences. To which I say: "Meh."

b. That old codger Jefferson... what did he know? Farmers have been getting shat upon by big city politics since the industrial revolution, and they grow the stuff that sustains us. We all suffer when they suffer, because we've all got to eat the same shit. (Please don't suggest that agricultural subsidies in their current form are pro-farmer, either; they're aimed at getting a ready-supply of food-like industrial products into urban grocery stores and nothing more.) The argument about big-state/small-state is a bit different, since even small states are still politically controlled by their population-dense cities. But these are the compromises we live with, and that tinkerers ought to be better aware of.

c) You assert that the Federalist Papers should be reserved for intellectual historians, yet you'd like to dismantle the institutions they're articulating and defending in those documents? Do you feel the same way about the Declaration of Independence? (I suppose if you get your way, you'd feel the same way about the original Constitution, right?) This sort of rhetoric doesn't display your proposals in a very flattering light.

# posted by

anotherpanacea : 5:45 PM

In further defense of Madison, he also proposed the proto-Fourteenth Amendment forbidding states from infringing on freedom of religion, freedom of the press, and trial by jury. Unlike Anti-Federalists, he did not mistake state's rights for individual liberty or believe that only the federal government could be a threat to freedom.

# posted by

Essayist-Laywer : 7:22 PM

Did he not oppose the two senator rule at first, supporting a per capita system that favored VA at the time?

Vehemently. The dispute over this issue nearly broke apart the Convention.

I also thought he supported a BOR to protect us.

Yes, Madison introduced what became the BoR and was the driving force in getting it passed by Congress.

The Senate rules are written to slow decisions in order to allow further deliberation, which as we are currently demonstrating, occurs both on and off the floor. There's nothing inherently undemocratic about delays like this, unless you think that democracy is essentially preference-aggregation and that deliberation plays no role in our understanding of our preferences.

There's a line between extending debate in order to foster deliberation and obstructing debate in order to preclude majority rule. The cloture rule is used far more often for the latter purpose IMO.

# posted by

Mark Field : 7:51 PM

There's a line between extending debate in order to foster deliberation and obstructing debate in order to preclude majority rule. The cloture rule is used far more often for the latter purpose IMO.

Certainly... but the Senate is only one institution; deliberation continues in the public sphere, and accountability to majority rule happens at the electoral level. The caveat (which Levinson has pointed out) is that you need a super-majority in order to overcome minorities who judge the benefits of obstruction to be higher than the perception of obstruction; but in a large republic like ours, which nearly dissolved twice in its first century, it is clearly better to avoid narrow majorities for controversial policies.

# posted by

anotherpanacea : 8:43 PM

but the Senate is only one institution; deliberation continues in the public sphere

Agreed.

accountability to majority rule happens at the electoral level.

Sure, but there are two problems here. First, it's very hard to punish "parties" as opposed to individual candidates. Many filibustering Senators may not face election for up to 6 years. That's a long time for an issue to remain of sufficient importance for accountability to be any real deterrent.

Second, a great deal of damage can be done in the short run.

I favor deliberation. There's too little of it today. But I also know the difference between that and obstruction.

in a large republic like ours, which nearly dissolved twice in its first century, it is clearly better to avoid narrow majorities for controversial policies.

Twice? Your definition of "nearly" must be that used in hand grenades.

But your example actually supports my point and harms yours. The reason for the near dissolution was the attempt by a minority to insist on having its way against the views of the majority. That's exactly what the filibuster rule permits and exactly why it's usually bad.

# posted by

Mark Field : 9:36 PM

No doubt I overspoke in my dismissal of Madison. He did indeed support some good things (the Bill of Rights, though it required a change of mind on his part) and opposed some bad things (such as equal voting power in the Senate). But we should still remember that he was very much, by necessity, a child of his own time and situation. I confess, for example, that I find it beside the point to rely on the Virginia Remonstrance in contemporary debates about, say, federal aid to religious institutions, because he had no conception whatsoever of the modern welfare state. He was writing against the background of a state that had quite limited taxation and didn't do all that much. (There was, for example, no public police force, for starters.) So it was indeed outrageous for the state to tax individuals to support churches. In the modern world, where government supports all sorts of things, it may well look like (and be) discrimination for the state to support just about everything except a religious institution. Reasonable people can disagree, but my point is that Justice Souter's belief that the Remonstrance decides the issue is simply foolish.

I would also point out, for what it is worth, that Madison was also one of the principal authors of the State Compact theory of the Constitution, which made its own contribution to the conflagration of 1861-65, even though he denied that the theory supported the notion of secession. (This is a good example of the proposition that authors are not always the most reliable interpreters of their own work.)

# posted by

Sandy Levinson : 9:49 PM

I appreciate SL's reply to some criticisms of his take, in part because it underlines again that he is willing to discuss the matter with us.

Anyway, surely, we all are products of our time. We should always take this in consideration, though some do not when addressing the Framers -- on all sides of the debate.

Take the lack of a welfare state. Sure. At least up to a point (the issue of funding religious education was in the air; the "multiple establishments" approach having some parallels to one mindset today, while others supported more strict separation).

But, that was just one aspect of Madison's argument. For instance, his support of various religious sects and the liberty of each to honor one's God still holds. Like other things, that stood the test of time.

Anyway, I think the cloture rule has some value. The House very well might pass a resolution and pressure the Senate. It only has been a few days. But, yes, a more equitably apportioned Senate (and the population inequalities were much less in 1789 and states as separate entities much more a reality -- thus "my country" was often one's state) would probably make the practice more equitable in the long run.

But, I think a 60 vote rule is sound in many ways.

# posted by

Joe : 11:20 PM

I think a 60 vote rule is sound in many ways.

It would be much less objectionable if the Senate were properly apportioned. The combination of the two is what causes the real problem.

# posted by

Mark Field : 12:36 AM

Many filibustering Senators may not face election for up to 6 years.

It's true. I'll be the first to admit that the institution has been out of whack since the seventeenth amendment. They may not be elder statesmen any longer, but I think it's good to have a body that aspires to that status. Maybe someday they'll deserve it. Meanwhile. I think the trade-off between short-term damage and long-term stability was exactly what the framers had in mind. I'm sort of fond of the idea, myself, even as I hate its current incarnation.

The reason for the near dissolution was the attempt by a minority to insist on having its way against the views of the majority.

Indeed... and the fact that they found no political recourse suggests that our institutions were -still- too majoritarian. The point of democracy isn't just to achieve justice and fairness, it's also to satisfy losers and keep them playing politics rather than arming for war.

# posted by

anotherpanacea : 1:03 AM

"I'll be the first to admit that the institution has been out of whack since the seventeenth amendment."

You mean when state legislatures, chosen by the people, picked the senators, they were all elder statesmen etc.? This fictional view of the 17A as a big threat to things, not but a part of a broader movement, is curious.

Party control btw worsens the problem too. We have senators who actually would vote for the resolution vote against cloture because of party loyalty. Meanwhile, 2008 election concerns -- as they should -- might factor in as a few at risk Republicans might ensure a majority in various cases in the Senate.

# posted by

Joe : 2:32 AM

"You mean when state legislatures, chosen by the people, picked the senators, they were all elder statesmen etc.?"

No, but they were, at least, an effective check against the open ended expansion of federal power; It's no accident that the New Deal came after the 17th amendment.

# posted by

Brett : 6:27 AM

The point of democracy isn't just to achieve justice and fairness, it's also to satisfy losers and keep them playing politics rather than arming for war.

I agree. As Jefferson said in his First Inaugural, "All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression."

There's no doubt that majority rule has to be tempered in some way to prevent majority tyranny.

Where we disagree is this:

the fact that they found no political recourse suggests that our institutions were -still- too majoritarian.

The solution to majority tyranny is NOT "minority rule". In fact, the very example you chose shows the danger of that. The "minority rule" at issue in the Civil War was rule of slaveholders over other human beings in bondage. I don't think anyone would choose that as an example of "too much majority rule". It was, to the contrary, a case of "too LITTLE majority rule".

Historically, the filibuster has been used mostly to protect an obvious injustice by a minority (e.g., segregation). It's use in the case of the Iraq resolution has nothing to do with preserving the rights of minorities. When it is so used, we can agree that it serves a valuable purpose. When it's not, it simply violates Jefferson's "sacred principle".

# posted by

Mark Field : 11:45 AM

Historically, the filibuster has been used mostly to protect an obvious injustice by a minority (e.g., segregation).

Levinson makes these same kinds of generalizations, but they don't wash as bald assertions for him, either. If you'd like to point to research that suggests that all or most filibuster and cloture motions are directed towards 'injustice,' I'd like to see it. But the claim that, because it was used to oppose the Civil Rights Act, this rule isn't usually used legitimately is absurd, the equivalent of arguing that Hitler was elected democratically. You'll also note that legal segregation, like slavery, has been abolished... just not on a satisfying timetable. Contra King, justice delayed is still justice. I think the wisdom of the Constitution is that it has many provisions that prevent majorities from holding sizable minorities hostage, in the hopes that time will achieve greater consensus. This Senate rule is only one of them.

Beyond that, it remains unclear whose position is better served by the civil war example. The parallels between the failure of reconstruction in the South and the same failure in Iraq are undeniable. Frankly, I think Bush is trying to avoid the pitfalls that led to Hayes' withdrawal of federal troops in 1877. While I'm not advocating a surge, it's plain that slavery-through-segregation continued in the South for another eighty years, and the same unrest on the part of Iraqi minorities will make colonization and military reconstruction of Iraq unsuccessful. On this comparison, Republicans look the same now as they did in 1876: abolitionists campaigning for freedom but unable to sustain the political and economic costs of an occupation.

# posted by

anotherpanacea : 1:58 PM

I think the wisdom of the Constitution is that it has many provisions that prevent majorities from holding sizable minorities hostage, in the hopes that time will achieve greater consensus.

Agreed.

This Senate rule is only one of them.

The filibuster rule is not Constitutional. The dispute is whether this non-Constitutional restriction on majority rule is justifiable.

It seems pretty clear that the Founders were prepared to protect minorities, but that, having done so, they expected the principle of majority rule to apply in the remaining cases (to which we've added a few by amendment since). To the extent the cloture rule disrupts majority rule, it's inconsistent with a fundamental principle of republican government.

I haven't even opposed it in all cases. I've agreed that there may be occasions when it serves to make the debate more deliberative. That's a factual question and it simply doesn't apply to the recent Iraq resolution debate, nor did it apply to many other filibusters.

Contra King, justice delayed is still justice.

Not very much justice for those who had to suffer and perhaps even die while waiting for that justice.

The parallels between the failure of reconstruction in the South and the same failure in Iraq are undeniable.

There may very well be some parallels to draw there, but (a) you've shifted from the Civil War to Reconstruction; and (b) terrorism to prevent blacks from voting doesn't impress me as a good argument for minority rule.

If you'd like to point to research that suggests that all or most filibuster and cloture motions are directed towards 'injustice,' I'd like to see it. But the claim that, because it was used to oppose the Civil Rights Act, this rule isn't usually used legitimately is absurd

The Senate's own website (link) uses the civil rights debates as the primary example of the use of filibuster.

There were 34 attempts to invoke cloture on judicial or executive nominations between 1949 and 2002. Cite. You can decide for yourself if justice was served in those cases.

As for its use with regard to policy issues, I'll just quote Prof. Calabresi:

"The traditional Senate filibuster of legislation has an ignominious history. It got its start in the 1840s when Sen. John C. Calhoun first employed a rule adopted in 1806 to defend slavery. He was called a "filibusterer," a term taken from a Dutch word for pirates who sought to overthrow Latin American governments to hasten the spread of slavery. From 1841 to the present, the filibuster was primarily used to defend Jim Crow laws. Today it stands in the way of vouchers, school choice, tort reform, and tax cuts." Cite.

# posted by

Mark Field : 3:55 PM

Those cites surround the extension of cloture to judicial nominations; what you'd need to establish your point is that the use of the cloture in policy discussions is -only- preventing just policies, and not -also- preventing an equal number of unjust policies. And, as you rightly point out, the Senate could do away with cloture rules tomorrow, if they chose to do so (and had 67 votes.) The fact that they haven't indicates an insight into the problem that you're missing: there's nothing magical about 50% plus one. Often, we want a little more certainty than a slim majority, especially when we're tinkering with issues that some people think are fundamental.

Let me attempt to clarify something, since it seems this has become necessary: I oppose all instances of slavery, colonial adventures, and injustice (defined as violations of the Rawlsian difference principle.) I'm not defending unjust regimes, just pointing out that votes taken in DC cannot reconstitute those regimes based simply on majority rules. The debacle of secession, civil war, military occupation, and failed reconstruction should have shown us that we cannot enforce our notions of justice with guns and bombs. Using central majorities to enforce unpalatable standards on sizeable minorities will always end in tears and bloodshed, especially when those minorities are the political class of their regions. That's what was wrong with the Civil War, that's what is wrong with our invasion of Iraq, and that's why the Senate requires a three-fifths majority to move a measure for immediate vote.

# posted by

anotherpanacea : 6:05 PM