Good Hold, Bad Holds

The Majoritarian Caucus -- Drum, E. Klein -- today are using the decision of Bernie Sanders to place a hold on the renomination of Ben Bernanke to trot out their opposition to all holds. Kevin Drum says:

Aside from my general dislike of the whole hold process, this is a pretty good example of a big specific problem with it: namely that I don't think Sanders has even the slightest hope that his hold is genuinely going to keep Bernanke from being confirmed...So all this does is gum up the gears and force the Senate to spend time on Bernanke instead of the million other things it should be spending time on.

I disagree: this is exactly why the "hold" is, or at least was, a worthwhile mechanism.

Oversight is one of Congress's important responsibilities, and the confirmation process is one of the best means of insuring meaningful oversight -- with the Fed, it's almost the only way of insuring oversight. Yet if Congress is only able to vote nominations up or down, then oversight becomes, essentially, a function of the will of the majority party, and nothing more.

The hold allows the minority, whether it's members of the minority party or small factions of the majority party, to participate in a little oversight of their own. Used properly, it allows small numbers of Senators (even one!) to say: hey, wait, I have some concerns, too. How are you going to address them?

It doesn't mean that small factions can automatically get their way; Bernanke (as Drum says) is going to be confirmed in the end, and may not have to make any commitments to Sanders before the hold is lifted. He will have to address Sanders' concerns. It seems to me that those concerns are both substantive and reasonable, and worthy of being answered. So what's the problem? Spending a little extra time on Bernanke doesn't seem like a bad thing to me at all.

A hold that forces nominees to address (not necessarily agree to, but address) real concerns of small factions of Senators seems like an excellent plan to me. I'd call those good holds.

Now, what Republicans seem to be doing -- what Democrats are calling hold abuse -- is different. In those cases, Republicans appear to be using holds not to achieve oversight on specific topics with specific nominees, but to just derail the ability of the administration to function at all. I generally agree with the Democrats on this one -- not just that these are "bad holds," but that it's an abuse of the hold.

I'll try to say something a little broader here...the various procedural protections for minorities in the Senate are justifiable because pure majoritarian democracy has a lot of problems. For example, in cases in which an indifferent majority is opposed by an intense minority, it's not at all clear that democracy requires the majority to win. More generally, there's a difference between the rule of the people and the rule of majorities; I would argue that only the former really qualifies as the best definition of democracy. The rule of the people often uses majority decision rules, but that's not the same thing as saying that majorities are supposed to rule.

Senators like to talk about the "rights" of individual Senators. I think they are quite correct to do so. In a democratic republic, it's wrong to think that the people of, say, Alabama should be entirely ignored for the next two years just because the candidate they supported lost the general election, and his party is in the minority in the Congress. They don't, of course, deserve to automatically win -- but they don't deserve to be ignored. It's rule of the people, not just the majority.

The trick, however, is to find rules that allow for everyone to have a say without allowing the minority to dictate things. To find, for example, ways to let intense minorities to (possibly) defeat indifferent majorities, without also allowing all minorities to defeat all majorities.

Now, whether particular antimajoritarian rules "work" or not is certainly open to debate. My sense of it is that in moderation, during an era of relatively weak partisanship, little ideological extremism, and willingness to abide by informal norms, holds and filibusters work pretty well. In the current era, which features strong partisanship, strict ideological separation of the parties, and a Republican party willing to exploit rules to their fullest extent without regard for old norms and practices, it may be that the hold and the filibuster are no longer viable methods of antimajoritirianism.

But that's not what Bernie Sanders is up to. What he's doing doesn't show what's wrong with holds or the Senate; it's exactly what the Senate should be doing, and why some of us would be sad to see the demise of that practice.