Balkinization  

Monday, May 31, 2010

Bicameralism and other cost-cutting possibilities

Sandy Levinson

You can find a letter from me in today's NYTimes responding to an earlier article in the Times on how financially strapped states are looking for ways to cut their budgets. My suggestion is that (at least) the 27 other states (besides Nebraska) with under-5 million population (i.e., roughly the size of New Zealand) emulate Nebraska by abolishing its almost totally useless (and necessarily costly) "upper house." I note that NY Republican gubernatorial candidate Rick Lazio has proposed doing away with the New York Senate. Although I share his belief (and that of the editorial page of the New York Times) that New York would be well rid of every single current New York senator, I'm genuinely uncertain about whether the largest states are helped or hurt by a second house (just as, for all of my loathing of the current US Senate, I am not opposed to national-level bicameralism per se, though even with a reformed Senate, I'd probably support an end to the "death-veto" that the Senate has over House legislation and allow the House to pass legislation that, say, gets at least 40 votes in the Senate with, say, 60% of the vote in the House (plus, obviously, presidential approval). I do hope that Lazio gets the Republican nomination--his principal opponent, turncoat former-Democrat Steve Levy, seems mainly to be rabidly anti-immigrationist--and I hope that he will try to educate New York voters about the deficiencies of their own constitutional system (and perhaps suggest a new state constitutional convention to do something about it. It would be interesting to see if Andrew Cuoma would actually be willing to defend the New York Senate in its current instantiation.

While I'm at it in promoting budget cuts, I note that my colleague Jordan Steiker, at the UT Law School, is currently working on a terrific article focusing on the increasing budget-based opposition to the death penalty. It costs an enormous amount to try somebody for capital murder (and to finance the inevitable multi-year appeals), and a number of conservatives are increasingly asking why counties should be risking bankruptcy for the possibility of a (long-delayed) pound of flesh. Indeed, there's an article in yesterday's (Sunday's) Austin American-Statesman, "Prisons among cost cuts?" noting that even Texas, which built a staggering number of prisons over the past two decades, is considering closing some prisons (as I think is the case in prison-happy California as well." Of course, this would require taking on the one union that conservatives seem to pay deference to, prison guards. Would they really rather cut unemployment benefits and similar safety-net programs in order to provide work for prison guards (who are guarding literally thousands of persons who are in prison for non-violent druguu-related offenses)? What would Rand Paul say about this (which is not meant as a snarky question)?

Comments:

Both large and small states should move to unicameralism. There are already more than enough "checks and balances".

Currently if a state wishes to adopt a new law that law has to first survive:

(1) A vote in the lower house.
(2) A vote in the upper house.
(2) The Governor's veto.
(3) A possible challenge that the law is contrary to the state constitution.
(4) A challenge based on the U.S. constitution.
(5) A possible petition drive to have the law overturned by the people in a referendum.

I think taking away just one of these "veto points" would be a modest and sensible reform. There is something to be said for checks and balances, but 21st century society is much more complex than the 16th century and sometimes requires decisive action.

For contrast with the typical U.S. state constitution, compare the system in New Zealand. A law is passed by the unicameral Parliament of New Zealand, and that's it. There is no governor's veto and no judicial review because the country has no entrenched constitution.

Or consider the UK. Again, a law is passed by the House of Commons, and that's it. There is an upper house but it only has the power of delay. No executive veto is possible. No constitutional challenge is possible.

I think the system used in the UK and New Zealand goes a bit to far. But no one could say that those are not civilized countries, with strong human rights, the rule of law, etc.
 

I am gratefulu to Modicum for his/her response. As I suggested with regard to Rick Lazio, the general argument in favor of unicameralism may be right, though I do wonder if one house is enough to "represent" the complex reality of large states or countries. (Of course, the current population of New Zealand or Minnesota is itself larger than the entire population of the US in 1790.)

I do strongly believe that even if two heads are better than one, it should stop there, so that the kind of bicameralism we have, in which each house can kill the other's legislation, suggests that we should get rid of gubernatorial or presential vetoes except in fairly extreme instances (where, at the very least, the governor or president can make a plausible argument that the legislation is unconstitutional and no merely unwise).
 

Modicum, you should be aware that step 5 is only available in a minority of states.

I'd be cool with converting more states over to unicameralism, if some other mechanism were to replace redundant chambers, to prevent ill advised legislation from being rushed into place before the public has a chance to rise up against it. I'd suggest requiring bills to be passed twice with some set interval between the votes, ideally with an election intervening.

Ever since the Supreme court ruled that the federal constitution somehow prohibits states from modeling their state legislatures off the very system that constitution mandates at the federal level, bicameralism has been nothing but a redundancy at the state level. It's only value is as a way of slowing down the process of adopting legislation, and there are more direct ways of accomplishing that.
 

At the federal level, bicameralism provides the House with all seats up for election every two years and the Senate with one-third up for election every two years. Here in MA, all seats in both the Senate and the House are up every two years. How does it work differently in other states with bicameral systems? In replacing the bicameral, might a unicameral system better serve with longer/staggered terms? Or is it preferable to have all unicameral seats up for election at the same time?
 

As a resident, I'm not sure if life would be so much better if we just got rid of our upper house.

I guess it is but inertia that leads every state but one to have bicameralism. I don't really think that. It is not a "redundancy" to have a second, generally smaller, house on the state level, even if the districts need to be equally populous (though I'm probably with Justices Clark and Stewart, who thought that it needn't be so exact).

Prof. Levinson thinks we can trust the veto of one person instead to deal with "notably unwise legislation." I assume governors in small states like Wyoming are somehow more trustworthy, so "unwise" legislation passed by the unicameral legislation can be defeated by one person there.

As to the UK, to quote Wikipedia, is not judicial review open if a law is thought to be "contrary to the law of the European Union or the European Convention on Human Rights"?

And, we are talking states here. If a local law is passed in the UK, and I assume there are some sort of local options there, they have to meet national requirements. And, I'm sure some have to pass some sort of local body in certain cases.

[Like how does it work in Scotland or Wales or some British island possession? Is it all top down? The UK Parliament determines every local regulation? Or was it like colonial times, when the colonies could pass local laws, with the national government having a veto power in certain cases?]

As noted, #5 is often not a realistic option in the U.S.
 

Joe said...

I guess it is but inertia that leads every state but one to have bicameralism. I don't really think that. It is not a "redundancy" to have a second, generally smaller, house on the state level, even if the districts need to be equally populous (though I'm probably with Justices Clark and Stewart, who thought that it needn't be so exact).

Bicameralism in the United States was based upon the theory of having one house based upon population and the other based upon geography to protect rural areas from being dominated by cities. On the state level, once the Supremes rewrote the Constitution to eliminate geography as a basis for apportionment, state senates did indeed become redundant.
 

What would Rand Paul say about [releasing non-violent offenders from prison] (which is not meant as a snarky question)?

Before or after the election? Paul already had to back pedal from his standard libertarian position supporting freedom of association.

In any case, I would only observe that not all non-violent offenders should be released from prison. Those committing crimes against property like fraud and theft should definitely remain. Releasing those convicted of personal drug possession also require close monitoring because they tend to resort to stealing to feed their habits when returned to the world.
 

How about a parliamentary system, combining a single-house legislature with the executive?
 

"Bicameralism in the United States was based upon the theory of having one house based upon population and the other based upon geography to protect rural areas from being dominated by cities."

This is interesting in that bicameralism was around in areas that really didn't have any cities of note. Likewise, bicameralism alone didn't prevent backwoods areas from being dominated in some areas, specifically because of the problem cited in the reapportionment cases.

Bicameralism is a check and balance mechanism in place for various reasons. For instance, the Senate was originally thought to be a more aristocratic institution. This was shown by different wealth requirements in some areas as well as the original concern of the House of Lords.

The U.S. Senate has specific functions as well. This "special functions" role also can be provided state-wide. For instance, if some impeachment/trial regime is set up, one house would impeach, the second try a governor. The Senate also can focus on appointments and so forth.

I fear Justice Souter is right: we really need to teach civics better in this country.
 

Joe said...

This is interesting in that bicameralism was around in areas that really didn't have any cities of note. Likewise, bicameralism alone didn't prevent backwoods areas from being dominated in some areas, specifically because of the problem cited in the reapportionment cases.

All of the original 13 colonies had sizable cities. The institution simply moved west from there.
 

Let me offer one possible (new) reason for two houses, which is term limits. I appreciate the argument against these, on the grounds that the voters can always remove someone; but under current conditions this is rare enough that I think some level of term limits makes sense.

However, the result of these in California has been an uninformed legislature, with more influence by lobbyists. One possible way to combine turnover with stability would be to give the upper house longer limits than the lower; this would provide some basis for what is
otherwise, with the current apportionment rules, purely redundant.

Having spent some time in New Zealand, I can say that one former defect of the system there (one house, no separate executive) was having overmighty Prime Ministers: if they could dominate their party caucus, they were (to use the local
phrase) "home and hosed". This led to real problems in the Muldoon era.
I call this a "former problem" because the change to mixed member proportional voting in 1994 reduced the likelihood of a single party having a majority; this change was partly in response to the problems just mentioned.
 

New Zealand is an inspiration in its ability to confront its problem (a defective election system) and do something about it, whereas the "American way" is to think that we have a basically perfect system of government, so that any problems are attributable to mendacious leaders and lack of civility (both of which might exist, of course) and never, ever, in the structures that we choose not to think about.
 

This comment has been removed by the author.
 

"All of the original 13 colonies had sizable cities."

The colonies had a handful of "sizable cities" as a whole, not enough to make them the basic reason for a bicameral legislature in all colonies.

I'd add, for general discussion, that the senate function was sometimes done via an executive council of sorts. Again, the Senate had various functions, regional representation but one. The "bicameralism" page on Wikipedia serves as an imperfect first look, as does any good civics textbook.

As to SL's last comment, with respect, "basically perfect system of government" is not really what many think is the case. Now, some think we are stuck with it, that it's the best we can expect. But, some 'best of all worlds' fantasy is not primary what we have to face up to here. It simply is unhelpful to try that tack.

NZ might be a vision of the possible though given its size [it has 4.3 million people total, for instance] and other factors, it is of limited value.
 

The colonies had a handful of "sizable cities" as a whole, not enough to make them the basic reason for a bicameral legislature in all colonies.

Very true. 95% of the US population was rural; only 24 "cities" had as many as 2500 residents. States like GA, NC, DE, NH, and even VA had no cities of any real size; only 6 states had "cities" larger than 5500. NY was the largest in the country, and it had just over 30,000 in 1790.
 

Begs the question: if the public doesn't think it's getting its money's worth from the legislature, why is big business so willing to invest?

I'd be willing to pay more for my legislators, if they'd stop accepting money from parties who can't vote. Until then, it matters little whether they're in one house or five houses.

And if anyone thinks this isn't on point, it actually goes directly to Modicum's response. I can furnish examples of law that Philip Morris didn't like, that died in committee courtesy of Philip Morris's investments in the legislature.
 

@Joe

I take your point that the situation in the UK is more complicated than the simplified version I describe above.

To begin with, British laws can be challenged on the basis of the European Convention on Human Rights (ECHR). However neither the British courts nor the European Court of Human Rights can strike down a law on that basis. And so in theory the government can just ignore a human rights ruling it doesn't like.

EU law is a better example. British laws can effectively be struck down if they are contrary to EU rules on matters like free trade.

You're right that something like the Scottish Parliament is a better comparison if we're talking about American states. Scottish laws have to fall within the limited powers of the local parliament. On the other hand the Scottish Parliament is unicameral, dominated by the executive, and has far fewer veto points than a U.S. state legislature. The is also no local Scottish constitution or bill of rights to worry about.
 

By the way, I don't advocate the British system of government. But it does show that without "checks and balances" the heavens do not fall. In a democracy the most important check will always be regular popular elections.

I think the British system is at one extreme while the U.S. model is at the other. Unicameral state legislatures would be a compromise in the middle.
 

Currently if a state wishes to adopt a new law that law has to first survive:

(1) A vote in the lower house.
(2) A vote in the upper house.
(2) The Governor's veto.
(3) A possible challenge that the law is contrary to the state constitution.
(4) A challenge based on the U.S. constitution.
(5) A possible petition drive to have the law overturned by the people in a referendum.

I think taking away just one of these "veto points" would be a modest and sensible reform. There is something to be said for checks and balances, but 21st century society is much more complex than the 16th century and sometimes requires decisive action.


1) I don't understand why "complexity" would require "decisive action." As a logical matter, the more complex the situation, the more deliberation you want.
2) While one can envision emergency circumstances which require "decisive action" by the executive, it's hard to see when the legislature would need to act decisively.
3) These things aren't roadblocks when "decisive action" supposedly needs to be taken, anyway; see how easily the Patriot Act was passed, for instance.

4) As Brett notes, #5 is available only in a small minority of states.
5) Even in the states where #5 is available, it isn't a "veto point," and neither is #3 or #4. With rare exceptions, these are ways to strike down a law long after the fact, not to prevent a law from coming into existence.

6) No matter how many times Sandy tries to portray his position as procedural, it's impossible to avoid the conclusion that his real complaint is ideological: that Democrats can't do whatever they want now that they're in the majority.
 

For "decisive action", read "unpopular action", and you'll be closer. I don't think it's precisely a partisan thing with Sandy, he just hates the idea that technocrats can decide something is a 'good idea', and it still might not happen.
 

@David Nieporent:

My point is simply that there are a great many safeguards in place. This applies even in Nebraska which is unicameral, and even in states without provision for the initiative or referendum.

Also this isn't a partisan issue, because we're talking about institutions at the state level, some of which are currently controlled by Dems and some by Republicans.

@Brett:

I don't quite see how a bicameral legislature is less likely to take "unpopular" decisions. New laws can be unpopular but so can failure to enact popular policies because of gridlock.

Some upper houses are based on staggered elections and so are not even intended to reflect the current views of voters. In those cases the governor and lower house seem more likely to be in sync with popular sentiment.
 

Brett and Modicum -- I didn't say "partisan"; I said "ideological." (I guess by using "Democrats" I may have given the impression that I was talking about partisanship, but I wasn't; substitute "liberals" for "Democrats" if that's less distracting.)
 

The problem being that if you replace "Democrats" with "liberals," the statement you made is false (since liberals do not constitute a majority), so yes, you're still talking about partisanship. Insofar as the two are linked, however, I'm sure you can be excused for the error.
 

'@Brett:

I don't quite see how a bicameral legislature is less likely to take "unpopular" decisions. New laws can be unpopular but so can failure to enact popular policies because of gridlock."


You have to decide at a given point, which is more important: Preventing bad actions, or enabling good ones. The policy that does one will be poor at the other. I tend to prioritize preventing bad policies.
 

I hate to get off topic again as I did with Sandy's earlier post to ask a regular Blogger here to comment on Justice Souter's Harvard commencement address last month. No one took the bait, not even among the "usual suspects" of commenters. But E. J. Dionne, Jr.'s column in today's (6/3/10) WaPo encourages me to once again off-topic. Dionne's title is: "David Souter vs. the Antonin Scalias".

By the way, I shall start to read today Cass Sunstein's "Constitution of Many Minds" (2009) which includes a blurb by Sandy who said it's "a fine book that is sure to provoke much discussion." I would hope that Justice Souter's commencement address would also provoke much discussion, especially at this Blog with its Brown v. Board of Educations connections.

Now back to "bi" vs. "uni".
 

Prof. Dorf has an interesting discussion about a NZ kosher regulation that provides food for thought as well:

With nominal parliamentary supremacy, New Zealand has no entrenched Constitution, but it does have a Bill of Rights, adopted in 1990 as an ordinary statute. The Bill of Rights does not authorize judicial review of legislation, but it does require that laws be construed, if possible, to be consistent with the BoR. Accordingly, without having checked the NZ case law, if any, I would guess that a judicial determination that the new code violates the BoR could conceivably result in a further finding that it is ultra vires relative to the underlying Act of Parliament, here the Animal Welfare Act of 1999. Apart from the prospect of judicial invalidation, the NZ BoR places an obligation on parliament itself to repeal laws incompatible with the rights contained therein.

Though off subject, yes, I thought Souter's address was worthwhile reading. FYI, you also might like Dorf's essay on use of legislative history, which also provides Scalia fodder.
 

No judicial review means no judicial review, in New Zealand. The court can say that a statute is "inconsistent" with the NZBRA, but in no way removes the duty to enforce it. Perhaps it generates certain pressures on the House of Representatives to modify the law, but that's an empirical question. The Government with some frequency is able to pass legislation that its own Attorney General has, as required by the Act, determined to be inconsistent with the Act.
 

Prof. Levinson, the issue at hand would seem to be more akin to an agency ruling that applies a somewhat openly worded statute in an "unconstitutional" way.

Do courts in NZ at times decide that the law being applied does not compel such a result and thus strike down the application? See, e..g., Kent v. Dulles or Justice O'Connor in Rust v. Sullivan.

It is clear that a "statute" can't be struck down. But, Prof. Dorf isn't really saying otherwise.
 

I tend to prioritize preventing bad policies

You mean of course preventing public policies. Nothing stops private actors from developing their own policies, for instance addicting 14 year olds to slow poison in order to make money. And the more bars to public policy, the less to stop private actors from doing exactly that, for instance.
 

Off topic again, Linda Greenhouse's NYTimes Opinionator 6/3/10 "Justice Souter's Class" pays tribute to Souter's commencement address.
 

Great article post this article is very help full for me to writing Bicameralism book. I think taking away just one of these "veto points" would be a modest and sensible reform. There is something to be said for checks and balances, but 21st century student aid society is much more complex. If a local law is passed in the UK, and I assume there are some sort of local options there, they have to meet national requirements thanks.
 

I think it might make more sense to be taking away veto points, rather than adding them, if the legislature weren't already passing laws faster than it's humanly possible to read them. Instead, it's more like the passengers of a car speeding down a mountain road so fast it's barely making the corners discussing disabling the brakes, so that they can go faster.
 

Brett observes:

" ... if the legislature weren't already passing laws faster than it's humanly possible to read them."

What is the empirical (as opposed to anecdotal) evidence to support this? Surely if it's humanly possible to write the laws that are passed, then it's humanly possible to read them. It is my understanding that legislators in voting on bills do not warrant that they have read or understood them. But this is not new. How many legislators who voted on the Patriot Act actually read and understood it? How many of them understand it now - as it has been amended? And many of the complex bills voted on are not instantaneously developed; rather, they come about over long periods of time, e.g. Health Reform. (Yes, provisions can be sneaked in overnight.)

I'm not praising legislators for their votes on bills they have not read or understand. I'm merely pointing out that this is nothing new. Just consider all of the tax (reform and otherwise) legislation enacted since I took a federal tax course in law school in 1953. It is said that ignorance of the law is no excuse; but apparently ignorance of legislators on bills they vote on that they haven't read or understand is punishable only at the ballot box, if then.
 

The scope is significantly broader, but how many legislators read all the text in complex legislation in the 18th and 19th Century? And, since many weren't lawyers, how many truly understood it? Clearly, specialization was and had to be present in some fashion.

This brings to mind a somewhat related point that Stevens' brought up in his C-SPAN Supreme Court series interview among other places: his experience as a legislative advisor gave him the insight that many legislators see laws as a sort of not fully executed contract. The judges in some fashion would have a role in defining the meaning of them.

Now, this might be a bad idea, but as a matter of how things actually occur, it seems accurate enough.
 

I don't find it very convincing (it charges Souter raises strawmen and then raises them up as well -- probably tellingly), fair play probably deserves this negative response to Souter's speech be included.
 

"What is the empirical (as opposed to anecdotal) evidence to support this? Surely if it's humanly possible to write the laws that are passed, then it's humanly possible to read them."

It's painfully easy to write laws faster than they can be read. You just have a team of people writing different parts. The problem is, that approach can't make sure the parts don't interact badly, or that one of the teams didn't sneak something in that the legislators would have objected to, if they'd read the bill.

If they'd been permitted to read the bill... The point of getting these bills voted on before there's time to read them is to transfer power from the individual member of the legislature to the leadership: The leadership can insert stuff into the bills at will, and the ordinary members must take the leadership's word for what's in the bill.

Bills should NEVER be voted on before the text has been available for a significant time to be examined. Unless a bill involves some kind of classified information, it should be released to the public well before it's voted on. More eyes are better.

There's simply no good excuse for bills being voted on before they've been publicly available to be read in their final form.
 

Brett seems to have come up with a variation of the anecdote of a camel resulting from a committee's efforts to design a horse with this:

"It's painfully easy to write laws faster than they can be read. You just have a team of people writing different parts."

So why can't teams of readers be utilized? Has Brett read and understood every case or statute he has ever commented upon? Or does Brett go to sources he relies upon to understand such case or statute?

Yes, it would be good if bills were made available to be read and understood (individually or in groups) before being voted upon. It would also be good if legislators followed committee and subcommittee proceedings more attentively rather than wait to be critical on a purely partisan basis. How many of the legislators who appeared on TV objecting to the Health Reform bill (or the Patriot Act early in the Bush/Cheney years) had actually read it in its entirety, even after its enactment? Legislators, like the rest of us, have to ration our time.

As to Brett's assertion that "More eyes are better" I would ask "Whose eyes?" and "How many more?" He who hesitates is lost. Haste makes waste. Is there a Goldilocks "just right"?
 

He who hesitates is lost? We just rushed through a bill that won't fully take effect for YEARS. They could have put it out there to read for a couple of months, no harm.

Except for the expectation that, the more people knew what was in it, the harder it would be to pass.

I'd strongly favor a constitutional amendment requiring that ALL laws be posted for public reading for a minimum of a month before final passage, unless a substantial supermajority could be mustered for rush passage, in which case a sunset provision would be automatically incorporated.

There just isn't any good excuse for passing bills before they can be read. Period.

And, as I pointed out, teams of readers have their drawbacks: Catching bad interactions requires that the entire bill pass through one head. That, or an exponential increase in readers.

We need, if not more actual "veto" points, a heaping dose of transparency, and time for the legislative process to be subject to democratic feedback before it's too late.
 

"I'd strongly favor a constitutional amendment requiring that ALL laws be posted for public reading for a minimum of a month before final passage, unless a substantial supermajority could be mustered for rush passage, in which case a sunset provision would be automatically incorporated."

That's a reasonable proposal. It seems like a more direct, to-the-point way of ensuring adequate deliberation than bicameralism. The evidence seems to show that an upper house isn't necessarily all that effective at preventing rushed legislation.
 

Brett says:

"And, as I pointed out, teams of readers have their drawbacks: Catching bad interactions requires that the entire bill pass through one head. That, or an exponential increase in readers."

I looked back to try to find where Brett pointed this out but was not successful. Is that "one head" each and every legislator - or perhaps a designated staff member of each legislator? There are many critics of bills, e.g Health Care Reform, but that doesn't mean that each critic actually read - or understood - the bill in its entirety. "You can lead a horse to water, but you can't make him drink" may be descriptive of a republican form of government.

I have to get off topic once again as I almost fell off the couch laughing yesterday while watching a re-run of "Need to Know," the program replacing Bill Moyers, when at the end Andy Borowitz in his "Next Week's News" feature said that the Supreme Court will rule, 5-4, that the Gores will have to stay together (presumably with Bush v. Gore serving as precedent).
 

The Senate does more than prevent "rushed legislation." Also, the typical legislation takes more than a month as a whole to get through, though the specific language of the law often is negotiated at the last minute.

I see some value in requiring a few days for the final bill to be examined, the rule able to be overridden in certain situations but a month appears unworkable as some across the board rule. It does bring to mind the process in place for public notice of regulations, which don't go into force until some waiting period with public comment possible.

I note that Mark Field made a comment. He has in the past noted Madison supported a US Senate apportioned by population. This apparently did not rob it of its value. A requirement that each state would have at least one member complicates things a bit, but a similar requirement that each little subsection of the state be represented doesn't really seem to me that comparable.
 

Off topic again, here's Dahlia Lithwick's "It's Complicated" 6/9/10 column at Slate subtitled "David Souter finally tells Americans to grow up" on Justice Souter's Harvard commencement speech last month:

http://www.slate.com/id/2256458/

that ties in the upcoming Elena Kagan confirmation.
 

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