Balkinization  

Monday, March 02, 2009

Government of the filibuster and by filibuster: Ever more thoughts on our defective Constitution

Sandy Levinson

Jean Edward Smith has posted an interesting piece on "Filibusters: The Senate's Self-Inflicted Wound," correctly noting "the trivialization of the filibuster in the Senate" and the reality of what can only be called minority tyranny. Smith notes that whatever rationale once justified the filibuster with regard to protecting some identifiable state institutional interests from the ravages of the national government went out the windoow with the 17th Amendment. "But with the direct popular election of senators, all of that changed. Senators no longer represented state governments, they represented the people. The rationale for providing states a veto through the use of the filibuster no longer obtained." Indeed, as I have argued repeatedly, the rationale for equal voting power in the Senate no longer obtains either; it has turned into the nation's most important affirmative action program, where the beneficiaries are the residents of small states with inordinate power to block legislation or to seek self-serving rents (see, e.g., Maine Senators Snowe and Collins). Smith concludes as follows: "In the great legislative reapportionment cases of the 1960s, the Supreme Court defined democratic government as majority rule based on the principle of one person, one vote. It is time to apply that standard to the Senate." But, of course, if we applied that standard to the Senate, far, far, far more than the filibuster would fall.

It's worth noting that the Times has also published an op-ed that calls for Harry Reid to "detrivialize" the filibuster by bringing up everything for a vote and forcing the Republicans to spend their nights in the Senate keeping the floor and to be publicly accountable for obstructing the popularly supported majorities of the House and Senate, instead of capitulating to the ludicrous "phantom filibuster" custom that has arisen over the past twenty years or so.

But I suppose it's just too radical to think of truly democratizing our political system. It's easier to fantasize about building democracy in Iraq and Afghanistan.



Comments:

It's worth noting that the Times has also published an op-ed that calls for Harry Reid to "detrivialize" the filibuster by bringing up everything for a vote and forcing the Republicans to spend their nights in the Senate keeping the floor and to be publicly accountable for obstructing the popularly supported majorities of the House and Senate, instead of capitulating to the ludicrous "phantom filibuster" custom that has arisen over the past twenty years or so.

The GOP would absolutely LOVE this option. A genuine filibuster would give the GOP the floor for non stop televised speeches to roast the Obama spending pork item by item and dominate the news cycle in a Dem media which is currently ignoring them.

The Dem Congress is hardly going to give the GOP that kind of gift. Support for Obama and even more so for his programs is fading . Dealing with the exploding deficit is becoming issue #1 with the voters. Thus, Obama and the Dems want to ram through this monstrosity out of public view and as quickly as possible.

BTW Sandy, which system do you think is more small "d" democratic - (1) the Dem House without a filibuster that passes bills written in secret by the leadership and that are unread by the rank and file before votes or (2) a Senate with a true filibuster that allows full and open debate on the provisions of bills?
 

Remind me, what's so special about a 50% + 1 voting threshold again? As far as I can tell, the only thing special about it is that it is the lowest possible voting threshold that does not allow for two contradictory items to be passed at the same time. Otherwise, any threshold between 50% and 100% is fine.

The US Constitution itself, in various places, uses a 2/3 majority (Treaties, for example) and a 3/4 majority (Constitutional Amendments require approval by 3/4 of the states). In Europe, the Council votes by unanimity on some issues, and qualified majority (= about 62%) on other dossiers. The UN Security Council votes with unanimity among the permanent five, combined with simple majority of all 15 members.

The list goes on and on, and to my knowledge there is no principled reason to prefer one over the other, except to consider the tradeoff between the workability of the system and the desire to encourage outcomes that are widely supported.
 

Bart:

The real reason we don't have the speaking filibuster anymore has nothing to do with Harry Reid's allegedly nefarious plans for the Republic. Rather, it concerns the one subject of true bipartisan agreement on Capitol Hill: laziness.

Seriously, these people work 3 day weeks already, and they don't want to stay up late at night debating anything.
 

Two comments:

First, the Professor's comments are right on the mark as far as the extreme anti-democratic nature of the filibuster is concerned.

I can't remember the source, but I'm sure the numbers can be easily verified. The 41 Republican senators doing the filibustering represent only 27% of the population. Thus this amounts to extreme minority rule.

And even when the R's had 55 senate seats, the 45 D's still represented 55% of the population.

Second, I think Mr. DePalma is listening to too much of the right-wing echo chamber. The fact is polls show that a significant majority of the population supports Obama's programs; and likewise views the Republican portion of Congress very poorly.

Just let the Republicans stand up and attack medical insurance for children, more help for veterans, etc. etc.

It is time that the Democrats held the R's feet to the fire, and let the public see these people for what they are.

After all, just last week republican minority leader Mitch McConnell, speaking at CPAC, stated that Rush Limbaugh was essentially the voice of the Republican Party.

Ross Taylor
 

Dilan said...

Bart: The real reason we don't have the speaking filibuster anymore has nothing to do with Harry Reid's allegedly nefarious plans for the Republic. Rather, it concerns the one subject of true bipartisan agreement on Capitol Hill: laziness.

In general, I agree with you. However, I was responding to the NYT's version of reality where the Dems are ambitious enough to miss their dinner parties and hold an actual filibuster to pass their spending increases. In that alternative universe, I cannot see why the Dems would do so.
 

I cannot see why the Dems would do so.

# posted by Bart DePalma : 2:33 PM


That is because you choose to remain willfully blind to the current popular support for Obama and his policies.
 

Prof Levinson:

all right, i'll play devil's advocate:

the senators still represent the states. their constituency is still the citizens of the several states. Just cause Cali has 33 million people, and WY has like 600k, they still have the same number of senators. So whether or not the Senate should represent states as opposed the the US citizenry, I don't think you can argue the representation in the Senate is no longer representation of the States as independent Constitutional actors. I never have understood the distinction between the direct election and the legislative appointment of a Senator creating a distinction between representing a State, and a people. No matter how big TX may grow at OH's expense, it'll gain relative power in the house, but they're even in the Senate.

In fact, you seem to contradict yourself immediately after when you say the beneficiaries are small states. How can the Senate no longer represent State interests vis-a-vis the national government, if the beneficiaries of the system are the same states that are no longer represented by senators. Why does one extra level of indirectness change the nature of the represented in the Senate?

Argue, by all means, the pluses and minuses of giving each State equal representation in the Senate, but you can't truly argue the Senators don't represent State interests.

I would likewise argue that geographical proximity is not necessarily the best manner to create a representative body, so turning the Senate into some second house of reps with bigger districts makes little sense to me. (especially considering just how large the geographic proximity can be in this day and age). Perhaps some kind of parliamentary system by party?
 

Filibusters are of course another ludicrous function of the illusion of democracy in America. The Times points out that, in theory and in practice, around 10% of the population can control the Senate through filibusters. But that's not taking into account the winner-takes-all voting system, which in the first place excludes enormous parts of the population.

These two occurrences taken into account together will make it so that perhaps 1-2% of the population can control the Senate without breaking a sweat.

The only system that even remotely deserves the name "democracy" is a system with proportional representation.

By the way Bart, how are your stock picks doing?
 

Jacob said...

By the way Bart, how are your stock picks doing?

As we discussed on a prior thread, I and many other investors started getting back into the market because the values of good stocks were low and Obama's choices for his economic team appeared to be rather conservative retreads from the Clinton years who could be relied upon to navigate a sane course.

Well, it turned out that stocks were indeed at historical lows, but the economic team was simply a Potemkin village illusion as the Dems broke hard left, borrowing and spending with abandon.

I started selling my stocks when the outlines of Obama's massive borrowing and spending plans became apparent and sold my last Apple stock just before the Porkulus Bill was enacted.

I broke even. Unfortunately for many of the rest of you, your 401Ks have now turned into 301Ks as the market has now lost nearly 20% in less than a month of nearly non-stop free falls since the enactment of the Porkulus. This is the worst February for the markets since 1933, which perhaps not so coincidentally happens to be the last time a new Dem Keynsian took office. One hopes the next decade will not be likewise similar.

While Dr. Obama was nattering on today about building a few inconsequential clinics, the markets are in laying in the ER unattended and bleeding to death. Investors have no confidence at all in the Obama Administration's ability to handle the economy and are now betting on a long and deep recession, contrary to the Obama budget's near hallucinatory projections of a Second Reagan-like boom starting in 2010:

"Investors finally understand this recession will be deeper and longer, and the recovery will be shallow," said Joe Battipaglia, chief market strategist for the private client group at Stifel Nicolas. "And the government doesn't have a sense of any solution that might instill confidence."

As the citizenry's retirements have now returned to 1997 levels, it is comforting to know that our new royal family at the Versailles... er, the White House is partying like its 1999, complete with conga lines and personal concerts. At least when Carter screwed up the economy, he appeared to be unhappy about it.
 

Baghdad, thanks to Obama my company has had a big spike in RFP's. Too bad for you that we're not publicly traded.
 

FWIW - I would never want to invest in any company that hired Bartbuster.
 

Does anyone remember if Levinson was against the filibuster when it was used to block the GOP?
 

Ross Taylor:

Did you?
 

FWIW - I would never want to invest in any company that hired Bartbuster.

# posted by Charles : 8:18 PM


Chucklehead, only employees can buy our stock, and we wouldn't hire you to clean the toilets.
 

Oh, please, let us not get into this again.

I had some hopes that (a) Sir **arles had been banned and (b) that **rt and **art-**ster were going to restrain themselves.

Please DNFTT.
 

Bartbuster:

You couldn't afford me. Some day, you will have to admit that I was right. Until that day, please, follow the sage advice, and DNFTT.
 

I know I shouldn't, but I would like to point out FDR took office on March 4, 1933. So Hoover was still in office in Feb of 1933.
 

You couldn't afford me.

# posted by Charles : 9:58 PM


Chucklehead, we wouldn't hire you if you offered to pay to work for us.
 

nerpzillicus said...

I know I shouldn't, but I would like to point out FDR took office on March 4, 1933. So Hoover was still in office in Feb of 1933.

You are correct. I had forgotten that. Of course, Obama also shares Hoover's policies of increasing government spending by taxing the rich. That worked out well.
 

Bartbuster:

Please PLEASE ignore me! Don't you know that DNFTT means?!
 

Mr. DePalma,


You are correct. I had forgotten that. Of course, Obama also shares Hoover's policies of increasing government spending by taxing the rich. That worked out well.


Actually, during a steady period from 1918 to 1929, Harding, Coolidge, and Hoover reduced taxes on the highest marginal rate from 77% to 24%, with Hoover's last tax cut as a Keynesian attempt at stimulus just after Black Thursday. Hoover mistakenly tried to raise taxes in 1932 to keep the budget balanced (much like FDR mistakenly tried to rein in spending in 1937). By the time Hoover raised taxes, we were already well into the depression. His refusal to create large deficits (thinking this would be the worst possible thing for investor confidence) is the Keynesian reason why the depression got so bad (and why FDR couldn't fix it fast), although allowing the banks to fail was probably the biggest structural issue. Which is why this time is hopefully different.

Obama is hoping the recessionary cycle is broken before the tax cuts expire, so no anti-growth effects will be had by their eclipse. We'll have to see. If the recession is still bad, even I would suggest delaying the expiration of the tax cuts.
 

Nerp:

Here is a homework assignment:

What happened to the unemployment rate and GDP after the Hoover marginal tax increase?
 

Mr. DePalma-

1) Those who make brutally erroneous claims like FDR being in office at a time he clearly wasn't should not be assigning "homework."

2) I thought it fairly clear to note that when I said:

Hoover mistakenly tried to raise taxes in 1932 to keep the budget balanced (much like FDR mistakenly tried to rein in spending in 1937).

and

If the recession is still bad, even I would suggest delaying the expiration of the tax cuts

made it rather clear that raising taxes during a recessionary cycle is a bad idea, just like cutting spending during a recessionary cycle is a bad idea.

3) Unemployment during 1932 rises from 15.9 to 23.6, and GNP drops 13.4%, though the numbers are not specific enough to say how much occurred pre and post June 1932, when the tax increases were passed. Of course, in 1936, FDR raises the top rate from Hoover's 63% to 79%, and unemployment drops from 20.1 to 16.9, and GNP increases 14.1%, so sometimes, tax rates and growth are not quite as correlated as conservatives believe.

4) try to remember Orin Kerr's advice next time you address me.
 

Bartbuster:

I told YOU that I would win.
 

Prof. Levinson:

I appreciate your distaste of the not-quite-democratic nature of the Senate, but what would you suggest instead? If the Senate is staffed in proportion to the population, it becomes just like the House, and one wonders why have two houses of Congress at all.

I think amending the constitution to create one house of Congress would be far too drastic a change for most Americans. However, as I write this I think I like the idea.

What I have in mind is a "compromise" where the single house of Congress has something on the order of 300 seats, which are appropriated according to population EXCEPT insofar as each state is guaranteed two seats.

Small states still receive a benefit, but it is reduced. Reducing the number of representatives save a little bit of money but more importantly increases the ability to give greater scrutiny to each. There would be on patching together of somewhat different bills coming from two separate houses, which presents to me as another rather non-democratic aspect of our present system. Of course the Capital will have a lot of empty rooms.
 

When we totally democratize our system, perhaps we can change the Pledge of Allegiance, thus not to confuse the school children (who undemocratically have a right not to say it contra to the wishes of some democratic majorities) when they are told to say "to this republic."

Smith notes that whatever rationale once justified the filibuster with regard to protecting some identifiable state institutional interests from the ravages of the national government went out the window with the 17th Amendment.

Why are senator suddenly akin to representatives when I vote for them but not when the people I vote for (legislators) vote for them? It is not like pre-1913 that state legislatures could bound senators or anything. They were independent actors.

If you want to change the nature of the filibuster somewhat, that's a somewhat different question. After all, Mr. Smith couldn't single handedly protect his campers today. But, having some sort of minority check is a Constitution full of them, seems okay.

Some raise the idea of judicial review. But, loads of important questions are political questions. Structural checks are important in that case. Is giving California and Wyoming the same number too anti-majoritarian? That too is open to debate.

Requiring (in some form) more than a majority of the Senate to block debate in various cases (again, I'm fine with modifying things somehow) does not seem like tyranny to me.

47% of the electorate voted for McCain. Requiring some compromise to put forth major legislation to protect their interests somewhat is not to be a bad thing overall.
 

If the Senate is staffed in proportion to the population, it becomes just like the House, and one wonders why have two houses of Congress at all.

I think the experience at the state level shows that this isn't true. The two bodies tend to develop different institutional ways. Moreover, the electoral districts break down the population into different groups for purposes of elections. That has the beneficial impact of changing the majorities and results in more diversity of opinion in Congress.

Let me give an example of how this might work. Suppose we wanted to apportion the Senate by population. Let's arbitrarily keep the number of Senators at 100.

Under present population figures, CA would have about 12 Senators. It might elect them all statewide, but it might also create districts which would be much larger than the House districts. Either way, the Senators would represent very different constituencies than House members would. That's a good thing.

Why are senator suddenly akin to representatives when I vote for them but not when the people I vote for (legislators) vote for them? It is not like pre-1913 that state legislatures could bound senators or anything. They were independent actors.

At least to begin with, there was a sense that Senators represented the states as corporate bodies, much the way ambassadors to the UN work. That gradually changed, so that it was no longer the ethos by 1913. By then, Senators were widely understood to represent the people of the states.

If that's true -- and I think it is -- it's pretty hard to justify the preference given to small states.

But, having some sort of minority check is a Constitution full of them, seems okay.

I agree that we need checks on majority rule. But each one has to be justified. We know the justifications for institutions like the Court and for the two branches of Congress because the Founders laid those out expressly. The filibuster rule, though, lacks any such theoretical justification. In fact, it's hard to see it as consistent with the tie breaker clause (VP breaks ties), and harder yet to square it with the basic principle of legislative practice.

If the filibuster rule is so beneficial, it's hard for me to understand why the Senate is, AFAIK, the ONLY legislative body in the world which has the rule. I can't imagine anyone suggesting we extend the rule to the House.

I don't know if Ross Taylor's percentages are correct, but if so it's pretty hard to justify a system which allows a 27% minority to block legislation. Even a veto requires 1/3 to sustain, and that's with the support of an independent branch. I don't know of any political theory outside of John Calhoun or Lani Guinier which thinks that minority rule is a good way to run a government.
 

Let me just point out that proposals to change the apportionment of the Senate would require overthrowing the Constitution. Not quite sure how you do that consistent with "the rule of law."
 

Let me just point out that proposals to change the apportionment of the Senate would require overthrowing the Constitution.

MLS, don't you think that is a bit of an exaggeration?
 

A change to the Senate requires the abolition of one provision in Art. V. That hardly seems like "overthrowing the Constitution", particularly when nobody has suggested achieving this goal by any means other than those already provided in Art. V.

In any case, the rhetoric is much the same as that of those who in 1789 supported the Articles of Confederation. Yeah, the Constitution overthrew those; so what?
 

I'll have more to say later, but I wanted to put out the numbers for senators, so we can see the filibuster is not a small state/large state problem, but a republican/democrat problem.
Rank Rank(w/ terr.) Pct of US Pop Running Cum. Senators Rs Ds D adv
01 01 California 11.95% 11.95% DD 0 2 +2
02 02 Texas 7.81% 19.76% RR 2 2 0
03 03 New York 6.31% 26.07% DD 2 4 +2
04 04 Florida 5.97% 32.04% DR 3 5 +2
05 05 Illinois 4.20% 36.24% DD 3 7 +4
06 06 Pennsylvania 4.06% 40.30% RD 4 8 +4
07 07 Ohio 3.75% 44.05% RD 5 9 +4
08 08 Michigan 3.29% 47.34% DD 5 11 +6
09 09 Georgia 3.12% 50.46% RR 7 11 +4
10 10 North Carolina3.08% 53.42% RD 8 12 +4
11 11 New Jersey 2.84% 56.26% DD 8 14 +6
12 12 Virginia 2.52% 58.78% DD 8 16 +8
13 13 Washington 2.11% 60.89% DD 8 18 +10
14 14 Arizona 2.07% 67.14% RR 10 18 +8
15 15 Mass 2.11% 63.00% DD 10 20 +10
16 16 Indiana 2.07% 65.07% RD 11 21 +10
17 17 Tennessee 2.01% 69.15% RR 13 21 +8
18 18 Missouri 1.92% 71.07% RD 14 22 +8
19 19 Maryland 1.84% 72.91% DD 14 24 +10
20 20 Wisconsin 1.83% 74.74% DD 14 26 +12
21 21 Minnesota 1.70% 76.44% DD 14 28 +14
22 22 Colorado 1.59% 78.03% DD 14 30 +16
23 23 Alabama 1.51% 79.54% RR 16 30 +14
24 24 S Carolina 1.44% 80.98% RR 18 30 +12
25 25 Louisiana 1.40% 82.38% RD 19 31 +12
26 26 Kentucky 1.39% 83.77% RR 21 31 +10
27 28 Oregon 1.23% 86.29% DD 21 33 +12
28 29 Oklahoma 1.18% 87.47% RR 23 33 +10
29 30 Connecticut 1.15% 88.62% DD 23 35 +12
30 31 Iowa 0.98% 89.60% DR 24 36 +12
31 32 Mississippi 0.95% 90.55% RR 26 36 +10
32 33 Arkansas 0.93% 91.48% DD 26 38 +12
33 34 Kansas 0.91% 92.39% RR 28 38 +10
34 35 Utah 0.87% 93.26% RR 30 38 +8
35 36 Nevada 0.84% 94.10% DR 31 39 +8
36 37 New Mexico 0.64% 94.74% DD 31 41 +10
37 38 W Virginia 0.59% 95.33% DD 31 43 +12
38 39 Nebraska 0.58% 95.91% DR 32 44 +12
39 40 Idaho 0.49% 96.40% RR 34 44 +10
40 41 Maine 0.43% 96.83% RR 36 44 +8
41 42 New Hamp 0.43% 97.26% DR 37 45 +8
42 43 Hawaii 0.42% 97.68% DD 37 47 +10
43 44 R Island 0.35% 98.03% DD 37 49 +12
44 45 Montana 0.31% 98.34% DD 37 51 +14
45 46 Delaware 0.28% 98.62% DD 37 53 +16
46 47 SD 0.26% 98.88% DR 38 54 +16
47 48 Alaska 0.22% 99.10% DR 39 55 +16
48 49 ND 0.21% 99.31% DD 39 57 +18
49 50 Vermont 0.20% 99.51% DD 39 59 +20
50 52 Wyoming 0.17% 99.87% RR 41 59 +18

The significant dem advantage comes from the last 20 states that represent less than 10% of the population, where they are +6 out of 40 seats (23/17). But it does look like Mr. Taylor is correct that about 27% of the population has 40 seats in the Senate. However, the equal representation in the Senate actually favors the dems, not the Republicans. Whether a second House would favor one party over another, and by how much, would depend on the electing mechanism used.


Mark -

I disagree with you on the substance of making the Senate another House. But, I do think there is an interesting issue as to whether we can amend the Constitution to remove equal suffrage in the Senate without a unanimous, instead of just 3/4ths vote. Do you think 3/4ths is enough, since an amendment is an amendment, or would we need all fifty states to agree? If so (really if either) what do you really think the chances of doing that are?
 

there was a sense that Senators represented the states as corporate bodies, much the way ambassadors to the UN work. That gradually changed, so that it was no longer the ethos by 1913. By then, Senators were widely understood to represent the people of the states

Ambassadors don't represent "nations" as artificial entitities. They represent the people of the nations. Senators represent the people of the states. Two senators in NY represent people differently than representatives of individual districts. Sen. Gillibrand (who replaced Clinton) acts different than Rep. Gillibrand.

I still would dispute the op-ed, since even if you are right, the appointment wasn't the issue. That is, time, not the 17A as such changed things.

In practice, other nations surely have measures where small minorities in some fashion block legislation. To name just one reality, small parties in Israel are basic to who controls the gov't. In practice, they weld great power, more so than their mere numbers.

I underlined that I'm willing to tweak the rules of the game here, so disputing the size of the minority check is really not disputing principle.

Finally, as to Art. V, the Constitution itself violated the constitution (Articles of Confederation) at the time. It required unanimous consent for amendment, which meant Rhode Island (that didn't even show up at the Constitutional Convention) could have blocked amendment.

We got around that. We can get around the unanimous req. to alter the two senator rule, if necessary.
 

I do think there is an interesting issue as to whether we can amend the Constitution to remove equal suffrage in the Senate without a unanimous, instead of just 3/4ths vote. Do you think 3/4ths is enough, since an amendment is an amendment, or would we need all fifty states to agree?

Let me answer this with an example from Athens. The Athenians operated as a pure democracy -- 50% + 1 ruled the day. Occasionally, though, a majority would try to make its law more permanent, not subject to change by future majorities (contrary, I'd note, to the whole premise of democracy). What they did was to add a clause to the law making it a death penalty offense to introduce or support any attempt to change the law.

The obvious way around this, which the Athenians quickly discovered, was first to repeal the death penalty provision, then repeal the law.

That's a long way of saying that IMO we can amend Art. V by a 3/4 vote to delete the ban on amendments depriving a state of equal representation, and then we can pass an amendment doing exactly that. That's wildly impractical, of course, but it's constitutional.

In addition, the experience of 1787 shows us that a Convention can do anything it damn well pleases, so that's the more likely way to accomplish the change.

Ambassadors don't represent "nations" as artificial entitities. They represent the people of the nations.

I don't believe international law treats them this way. Ambassadors represent governments, not the people. They can be recalled by a government at any time, and can be disavowed by the government for exceeding authority.

In practice, other nations surely have measures where small minorities in some fashion block legislation. To name just one reality, small parties in Israel are basic to who controls the gov't. In practice, they weld great power, more so than their mere numbers.

I'm not aware of any such limits in those countries with English parliamentary background, but I admit I don't know nearly enough to make my own knowledge a test of anything. I would not, however, want to have our government emulate the one in Israel.
 

In fact, ambassadors still seem to me to represent people. The people generally -- at least to give a halfway comparable situation to U.S. states -- choose the leaders anyway. Senators could not be recalled by legislatures, so to any extent, the parallel was flawed.

I also don't know all the nuances of other English parliamentary systems, which for a long time was surely not that democratic, but in practice, I'm sure there are ways to block legislation in respects given political realities or otherwise.

But, plurality rule does play a part in some of them, I'm sure, giving de facto power akin to the Israel case. Surely, even w/o a filibuster, realities in this country would leave power to some powerful swing group, providing a de facto filibuster power.
 

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