Tuesday, February 09, 2010

The Problem is the Senate, not the filibuster per se

Sandy Levinson

Ben Eidelson has a posting on Slate noting that filibusters are not necessarily "undemocratic" if by "undemocratic" one means (plausibly enough) thwarting the will of a national majority as measured by the number of constituents represented by the filibustering senators. [THE FOLLOWING IS REWRITTEN FROM THE ORIGINAL POST, FOLLOWING A MESSAGE FROM BEN. INDEED, I WILL SIMPLY QUOTE HIM:]

The Majority Party column is who was in the majority when the filibusters listed were conducted -- so Democrats were in the majority for 63 filibusters, they didn't conduct them. And the Yeas and Nays are on the cloture vote itself -- so the 97% means that when Democrats were filibustered, they -- as the majority -- represented a national majority 97% of the time. When they filibustered (89 times), the Senate majority (Republicans) represented a national majority only 36% of the time (so the filibustering Democrats represented the majority 64% of the time).

The reason for this anomaly, of course, is the indefensible allocation of power in the Senate, by which Wyoming and California are equally represented. One should distinguish, therefore, between a fury at the filibuster per se, by which a minority of senators are able, by definition, to block a vote by a majority of their colleagues, and particular filibusters, where the minority of senators cannot, in any plausible sense, be said to be engaging in the representation of a majority of the populace who are presumptively opposed to the majority of the senators who, nonetheless, represent only a minority of the national population.

Eidelson therefore suggests not eliminating the filibuster, but reducing the number of votes needed for cloture from 60 to 55. "With a 55-vote threshold," he writes, "60 percent of the 'minority rule' filibusters would have been prevented, but 78 percent of the 'majority rule' filibusters would have remained intact."

It is a very thoughtful post, well worth reading. It persuades me that we should be most outraged about the Senate itself, then the practice of "holds," and only, in third place, the filibuster, which does, ironically or not, on occasion serve to "offset" the ability of a minority of our fellow citizens to run roughshod over the rest of us because of the equal-state-representation rule.

For better or worse, it is considerably harder to make Eidelson's proposal the centerpiece of a national campaign than a call for outright repeal of the filibuster. And, between retaining it in its present form and elimination, I would favor the latter. But, obviously, there is much to be said for more nuanced positions.


"a minority of our fellow citizens to run roughshod over the rest of us"

Except of course that a bill has to pass both the House and the Senate. The House represents the population exactly, so a majority in the Senate cannot run roughshod over anyone. A group of Senators representing a minority of the nation can, however, prevent legislation from passing.

That appears to be exactly what the founding fathers wanted. They wanted legislation to pass only when it had broad support. Broad based on the population (House), but also broad based on region (Senate). And, of course, there is the Presidential veto.

Representing states that command a majority of the population does not mean that you represent a majority of the popular vote. There are some states/districts that vote overwhelmingly for a particular party or candidate. Other states or races are balanced and decided by a few votes. Depending on how that turns out, even in the House a majority of the representatives are not guaranteed to represent a majority of the votes cast even when they represent districts with a majority of the voters.

I would like to make a counter proposal. Maybe the number of votes needed to close off debate should be determined by the number of unrelated items, earmarks, personal favors to special interests, and other trash that the committees put into the bill. I have no objection to a nice clean bill getting a 55 vote passage, if the kind of corrupt "Christmas Tree" garbage that politicians of either party normally turn out requires a more sizable supermajority (say the votes of 102 Senators) to pass.

A basic disagreement between Mr. Gilbert and myself is that I really couldn't care less what "the founding fathers wanted." After all, among other things, they "wanted" to collaborate with slavery to the tune of adding a 3/5 bonus to the representation of slave states. We have to think for ourselves and not rely on the framers except to the extent that they persuade us by force of argument.

That being said, I think that Mr. Gilbert makes a very powerful point with regard to "omnibus legislation" that is, indeed, filled with lots of junk (including "earmarks"). I don't know that the Health Bill, however gargantuan in size, counts as such legislation, given the undoubted complexity of the issue and the interrelation among its parts. But I don't know that I would necessarily a congressional rule similar to that found in many state constitutions, that requires all provisions in a given piece of legislation to be "germane" with one another. Non-germaneness obviously is conducive to logrolling and what many of us might well agree are forms of corruption.

Sandy said..."a minority of our fellow citizens to run roughshod over the rest of us"

I think it would be more accurate to argue that the filibuster thwarts majority government.

The filibuster is a procedural shield and not a sword. A minority cannot affirmatively enact any legislation "run[ning] roughshod over the rest of us." Rather, the filibuster requires a super majority to run roughshod over anyone.

I concur: Since the filibuster only allows a minority to block legislation, it can't be used to "run roughshod". Rather, it can be used to prevent the majority from "running roughshod" over a significant minority.

And the Senate, when states representing a minority of the population block something, is operating just as it was intended to operate. In order to pass both houses, a law must be popular in a distributed fashion, not just locally.

I suppose if someone proposed a law which drew a line from north to south across the nation, with 100% taxation to the west, and 0% taxation to the east, you'd be cool with it so long as the line was drawn to secure the votes of 50% plus one of the population? That's the sort of thing the Senate helps prevent.

Giving special deals to states of key Senators or congressmen to buy votes and exempting Labor Unions from taxation on high cost policies are examples of special interest let's make a deal legislation. But the big problem is that the fraud is in Congress and not in the Health Care industry.

Congress claims it can save money by reducing already insufficient payments to Medicare and Medicaid providers, or recovering imaginary windfall profits of insurance companies. However, the high cost of Health Care is that we want to buy too much of it.

We all want a CAT scan every time we fall down, just in case something shows up. Nobody wants to tell Grandma she cannot have that power scooter she sees advertised on TV all paid for by the government. Don't reform malpractice claims and stop defensive medicine. In other words, pass a bill that won't actually prevent a single unnecessary test, procedure, or doctor visit but wave a magic wand and create imaginary savings by taking it all from the modern equivalent of the "rich Jews" that the Europeans used to blame for everything. That is what now passes for liberalism.

You cannot reduce greenhouse CO2 without putting a tax of $1 or more a gallon on gasoline and phasing out coal fired power plants in favor of some new nuclear technology. Imagining that you can fix the problem with windmills (but in someone else's back yard) is nonsense. Closing Yucca Mountain because you made an election promise to get Navada votes, and then claiming that you are going to reduce Global Warming is all by itself enough hot air and flatulence to raise global temperature by a measurable amount. "Cap and trade" belongs with "bait and switch" and "pump and dump" as a kind of financial scam and not a real solution to real problems.

You cannot stimulate the economy with a thousand pork barrel programs none of which actually produce goods or services that can be sold, but just borrow money from the Chinese to buy stuff the government cannot afford to pay for itself.

In ten years we are going to have to run the government on far less money than we have now. We will have to make good on Social Security promises that will eat up more of the budget, and we will have to pay interest and principle on the money we just borrowed during a period of pathologically low interest rates. If somehow we can run the government ten years from now on that much less money, then why not start today to spend only as much money as we will have then. Since when is it rational to say that "I can't live on less than twice as much money as I am making today, but I will simply declare that in ten years I can certainly live on half what I am will be making then, and therefore it balances out."

In 2001 the Republicans demonstrated they could not be trusted by their ridiculous tax cuts. Eight years later, the Democrats show they also cannot be trusted because of unsustainable borrowing.

In their most outrageous days, the thieves on Wall Street were two bit hustlers compared to the guys in Congress. So forgive me if I am not in some great rush to make it easier on them to borrow some more, and steal some more, and lie some more, and make things worse for the future.

The financial crises would not have been averted if it was easier for Lehman Brothers to package subprime mortgage paper, or easier for AIG to issue more credit default swaps. So why do you think we will make the country better to have this pack of swindlers pass another package of fraudulent programs that fix none of the problems they said they were going to fix while promising Americans we can eat only ice creme for breakfast, lunch, and dinner while losing weight and keeping fit.

If either party could come up with one honest program, just one program that isn't based on lies and fraud, then I might feel bad if it could not pass because of Senate rules. Until then I still like the idea of everything requiring the votes of 102 Senators before it passes.

The Brat and Bert tandem continue in "sink" [sick!].

I'd further point out that, since only about half of those qualified bother to vote, and you can win an election with barely over half the votes even if it's not three-way, a bare majority in the House actually only represents about 1/2 * 1/2 * 1/2, or 1/8th of those qualified to vote, in the worst case.

So, here's a proposal: Issue each citizen of voting age a proxy, and let them have it exercised by whoever they chose. Transferable at any time, in case the elected decide they want to change their positions after the election... Legislation passes if voted for by over half of the proxies.

Very democratic, don't you agree? I don't suppose much legislation would pass, though.

Would Brett call for a Constitutional Convention for his proposal:

"So, here's a proposal: Issue each citizen of voting age a proxy, and let them have it exercised by whoever they chose. Transferable at any time, in case the elected decide they want to change their positions after the election... Legislation passes if voted for by over half of the proxies."

to amend the requirement for a republican form of government?

Sandy might have a few proposals to offer.

By the way, under Citizens United does a stockholder of a publicly-traded corporation provide a blanket proxy for the corporation's use of its funds to support a political position?

What kind of mustard is best with tongue in cheek?

The "republican form of government" idea is selectively respected.

For instance, judicial review and other in various ways non-democratic institutions are rejected.

And, there are appeals to polls about what the public think about some certain issue and that is supposed to be the test to legislate.

Cf. republican form of government where we elect people, they come together and spend time developing legislation and so forth, not acting on Perot type instant polls.

We now have the technology for real democracy. Put everything to a vote on the internet. Run the country like American Idol. If you insist on representative government, count the number of Friends a politician has on Facebook. For the basic theory of such a system study Robert A Heinlein The Moon is a Harsh Mistress.

HG suggests:

" Run the country like American Idol."

This might result in the "American Idle" running the country. Let's see, what's the unemployment rate?

[Full disclosure: Although I take on a paying legal gig once in a while, I'm in semi- leaning towards full - retirement. In my salad days of legal practice, I wouldn't have the time to spend on the Internet because the law, for serious practitioners, is truly a jealous mistress, perhaps more demanding and harsher than the Moon.]

I seriously doubt the intelligence of modeling a system of governance on a piece of fiction. Also, if Howard Gilbert had actually read all the way to the end of that novel (as well as the sequel) he might have noticed that the governing body had found a way to defeat the deliberate attempt to make passing legislation as difficult as possible and subject to public review.

It should be obvious to even the most intellectually challenged that there are times when passing legislation is necessary. Real problems do occur, and not all of them can be solved by the invisible hand of the market. On the other hand, there are also times when it would be better if a particular piece of legislation had just died, but it got passed despite that.

It should also be obvious that people will disagree on when these situations occur.

However, we have a current situation where the ability to govern of the person who was elected by a very significant majority in a very recent election is being injured by a party whose avowed interest, as expressed by several of its influential leaders, is simply to make the president fail.

Surely the reason why bills are loaded with special deals for obscure, thinly populated states is because their Senators can hold an actual legislative majority hostage because of the implicit need for a super majority...

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