Tuesday, August 20, 2013

Yes, Madisonian Democracy Protects Minorities

Most people aren't Jehovah's Witnesses, and Jehovah's Witnesses are mildly annoying when they go door-to-door prosyletizing, so you might see a proposal to trample on Jehovah's Witnesses interests by banning them from knocking on doors. In this case, the filibuster would defend the interests of a minority group because it makes it harder to pass laws.

On the other hand, most people aren't gay and some straight people think gay sex is immoral, so gay people may be subject to discrimination in employment and other venues. You might see a proposal to advance gay interests by banning employment discrimination on the basis of sexual orientation. In that case, the filibuster harms the interests of a minority group because it makes it harder to pass laws.
Two things. One is that Yglesias places the whole debate in the context of minority groups. That's fine, but it's not the whole question; there's also minority opinion and interests. Indeed: the real issue here is probably majority and minority opinion, more than anything else.

And then...well, yes, it's not only true that Madisonian democracy has a status quo bias, but it's one of the chief drawbacks of the system. I absolutely concede that.

But his example here shows why we it can be more helpful to think about majority and minority opinion. Who is the minority in his example of discrimination against gay people? It's trickier than he thinks. If the group is just LGBT people, then they surely are a minority...but if they are a minority, then their efforts to affirmatively pass laws is going to be unsuccessful in a plain majoritarian legislature because they won't have a majority of the votes!

On the other hand, if the group in question is, say, all tolerant people who also believe in government intervention to protect against discrimination, and if that group is in the majority...well, then, it is absolutely true that the filibuster (and other Madisonian devices) might prevent them from passing laws. Absolutely true -- but not a case in which "the filibuster harms the interests of a minority group." Because in this case, the filibuster is harming a majority -- the people (assumed to be a majority) who want to pass the bill. The minority are (if the facts are as stipulated), whether Yglesias likes it or not, the people who hate the gays (and/or hate government intervention).

If, however, we want to only talk about minority groups, which is also reasonable, then we're in a bind. Because in that case lots of people, and almost certainly the plurality, don't care much either way, which means that both gay people and bigots who hate them are minorities! One or the other will be shafted. And, while one might protest that haters aren't really a "group," in fact we're probably talking here about members of certain churches (who think of their political action on this issue as a manifestation of their religious belief). We all agree, I would think, that church members are a group.

Now, it may be the case that one of these claims is more just than the other. But in my view, that's not a claim that democracy has much to do with. Democracy per se isn't (in my view) about making sure that justice prevails; it's about making sure that people can self-govern in some sort of meaningful way. Which is hard enough.

So to go back to "one or the other will be shafted," what Madisonian democracy attempts to do, in my view, is to make sure that the side that loses isn't destined to lose on everything forever or even for the medium term; that the losing side on one thing doesn't have to be on the losing side of everything; that intensity counts, so that an intense minority will (often?) defeat an indifferent majority; and otherwise ensuring that self-government does not become an oppressive rule of the majority. And it does all of that using a variety of devices and incentives to make sure, above all, that one stable majority does not confront one stable minority. For whatever the justice of that situation may or may not be, what Madison was certain of (and what keeps being proven out, from ancient times to Egypt this year) is that it just isn't stable.

If we're to return to the filibuster specifically, that's a much harder question. As I've written, I think the filibuster is most justified simply in terms of democracy when it comes to judicial nominations -- because that's exactly where other checks and balances are weakest. For legislation (and to some extent for executive branch nominations), what I like about (more limited than current) filibusters is that it strengthens individual Senators, which in my view strengthens overall self-government. But really we're not so much talking filibuster in particular here than we are talking about the general idea of majoritarian vs. Madisonian, or anti-majoritarian, democracy.

And for that, yup, Yglesias is correct that a status-quo bias is a very real problem for advocates of Madisonian systems. There's no inherent reason why status-quo bias is good for democracy...indeed, it absolutely goes against one of the major arguments for democracy -- the ability of people to collectively choose their own destiny. So I'll certainly acknowledge that drawback, and that the benefits I see much outweigh it -- which, in fact, I believe they do.

But he's absolutely wrong about majorities and minorities.


  1. "There's no inherent reason why status-quo bias is good for democracy"

    Other than that practical experience has shown that societal responses to severe internal turmoil usually involve the replacement of democracy by some form of tyranny? Stability, which is enhanced by a reasonable amount of status quo bias, is practically sine qua non of healthy and enduring democracies.

    1. Eh...institutional stability good; policy status quo bias bad. That ok with you?

    2. In a system where both institutions and policies are implemented and regulated by legislation through a unitary procedure, I am not entirely sure that's a distinction with a difference.

      I understand that politically they can be somewhat different. I am coming at this with a lawyer's and legislator's view, since that's what I do.

      And in any case, one person's institutional (heck, quasi-*con*stitutional) bedrock is another person's whimsical policy choice. Look, for example, at how competing groups view the Voting Rights Act.

  2. Status-quo bias is likely to be harshest on those termed "minorities" in the sense of identifiable social and demographic groups who are victims of social and/or political oppression. Current institutions and laws, having been established in the past, will often reflect outdated views about the capabilities of women, say, or the acceptability of gay relationships, or the equal worth of people of color. (Not always true, of course; most political systems are subject to occasional reactionary moments in which majority opinion shifts becomes less tolerant of "minorities" in the sense of that term I used above. But in general, I think the history of most liberal democracies is one of greater tolerance over time.)

    If that's right, status-quo bias isn't just a pernicious sort of inefficiency that Madisonian democracy is prone to. It's an affirmative commitment by the political system to allow the currently-privileged to block the political progress of the currently-oppressed. You can see why in that situation, many lefties would be skeptical of Madisonian democracy in general.

    1. I think this is exactly right, and it's why I don't buy Jonathan's argument. If there's a general trend in Western society towards making things better for oppressed groups, it'll help those groups if we can get rid of status quo bias that blocks the trend.

      Jonathan is right that the filibuster protects minority opinion. But those of us who care about "protecting minority rights" aren't talking about letting a bigoted 40% of the population deny rights to gay people. The sort of "protecting minorities" that people care about involves helping oppressed groups, and to conflate that with minority opinion is just to confuse the issue with confusing words.

  3. On the definition of "minority," I suspect that when the Founders spoke of protecting the rights of minorities, they mostly had well-to-do lawyers, merchants, and plantation owners in mind. The need to have the Constitution ratified by a larger group probably encouraged them not to get too specific, and that vagueness is what ultimately made the expansion of rights possible.

  4. My personal test for the filibuster/multiple veto points: I can think of many instances where the ability of a minority group to jam up the works has been in the cause of some injustice (e.g., filibuster stopping anti-lynching bills). I can't think of a case where we realized in retrospect that a filibuster prevented passage of a bad law.

    Put another way, on my angriest days it seems perfectly appropriate that the founders designed a system that seems to only protect the minority rights of the most conservative, elite white part of the country.

  5. What I don't get from this discussion is the difference between what the filibuster traditionally meant and how it is used now, pre-emptively to prevent even discussion of a bill, let alone a vote.

    It seems to me that in the past the filibuster was part of the discussion, and delayed votes on bills, with the potential of gaining enough support to defeat the bill. In that case it gives a minority opinion more time to convince the majority. But if it is employed as a mechanism to prevent discussion, it is a minority veto, which I have never understood to be its original intent.

    In terms of when the filibuster was used, Jason makes an interesting point. In my generation we do tend to associate it with southern white Senators trying to hold back the ideas whose time had come. But what if the House now had a filibuster mechanism? How many bills defunding Obamacare and restricting abortion would have passed?

    1. There was no "original intent" behind the filibuster. It was an accident of parliamentary procedure and the founding generation never used it.

  6. "...that one stable majority does not confront one stable minority. For whatever the justice of that situation may or may not be, what Madison was certain of (and what keeps being proven out, from ancient times to Egypt this year) is that it just isn't stable."

    That's interesting. But how do you reconcile it with the apparent success of Westminster style parliaments?

    It's been about a hundred years since a Monarch or the House of Lords had a lot of power in the UK. And the House of Commons is a majoritarian institution, but the country hasn't descended into tyranny (even when others in their neighborhood were). And the same system is used successfully in other places such as Canada and Japan. Also, India, which is pretty stable considering its circumstances.

    Is the Westminster system more Madisonian than it appears to be? How do these countries avoid the problems of a stable majority?

    1. I tend to regard Westminster style systems as clearly superior to Madisonian systems, for all the reasons discussed above. However, they are less majoritarian than they at first appear. For one thing, many such systems are based on coalitions, and the internal dynamics of coalition building and maintenance provide plentiful space for protection of minority interests. In other cases, the power of the parliament is de facto constrained by very powerful executives, independent social institutions, or other entities and practices. Nevertheless they avoid the status quo trap which, I agree, is a far more lethal problem than JB wants to admit, and which is becoming a greater problem almost with every passing day.

    2. Anastasios, that's an interesting point - my entirely uneducated reaction to this discussion is that the filibuster, in a Citizens United era, ends up causing the Madisonian system to look like a Westminster system, minus the room for maneuvering you cite above.

      For example, suppose some squishy RINO like Susan Collins decides it really is getting hot in Maine, so she gets on board with some version of cap-and-trade legislation. In a Westminster system, she could work behind the scenes to get her party to come around to her side. That's true here too, but given the stigma of the filibuster, she'll find herself on an extremely lonely ice floe, rapidly melting, and not just cause of AGW.

      My impression is that, in a Westminster system, party unity gives heretic individuals some cover. A Madisonian system is supposed to do the same, but in a "filibuster-everything" senate, there's nowhere for a RINO squish to hide from the wrath of a Koch brother.

    3. CSH, I think there are several things going on with that situation. For one thing, you are right that we have parties that are increasingly adapted to parliamentary government saddled with a system that doesn't, foundationally, recognize parties at all much less parties like THAT. Talk about unstable and unworkable situations!

      Also many, including I think JB, would add that there are parliamentary parties and then there are parliamentary parties. That is there are parties in the Angela Merkel/CDU style and there are parties in the Gingrich/GOP style. One can come up with an argument for how Madisonian democracy might work with the former (personally, I think the arguments are strained and border on denial, but that's just my own view), but it is pretty much impossible to see how such a system could work with the latter.

      I am not enough of an expert on the filibuster and its history to directly engage your point, although I think it is interesting. I have no doubt that the filibuster is one of many legislative practices and developments that have played into the evolution of our current dysfunction, and which currently maintain it.

  7. Also occurs to me this morning, when you argue that the virtue of the filibuster is that

    one stable majority does not confront one stable minority

    doesn't that conclusion critically assume that the numerical minority and the economic minority are the same group?

    Usually they are. Exceptions are familiar, perhaps most notably Saddam's Iraq, where the Sunnis comprised maybe 20% of the population but held all the cards.

    When there's a split between the numerical and economic minority, doesn't the filibuster reverse, and go from being a method to prevent oppression to a tool of oppression? When the economic minority is a numerical majority, one of the best ways for the economic minority to overcome that is to flex their majoritarian muscle - which a filibuster helps prevent.

    Surely we have not become Saddam's Iraq. Nevertheless, its easy to see that the numerical and economic majorities have fundamentally split in the US today.

  8. Should one's views on majoritarian vs Madisonian democracy be influenced by the fact that the general populace of less than high information voters (and even many high-information journalists) clearly assumes that something more like majoritarian democracy holds in the US and is the most legitimate type of democracy? There's some level of deception going on when our political culture around election time and in headlines largely discussing the democratic process in majoritarian terms, even though the process constantly hinges on Madisonian attributes. The filibuster is the chief example of this, but there are others. Most of Republicans obfuscating arguments to the general public are conducted in terms of majoritarian norms, but their whole strategy as political actors relies on using little noticed Madisonian elements to block things. If we had a healthy Madisonian political culture, a political party would not do this.

  9. To complicate matters, it's worth considering that, if many of the eurozone countries had more protection of "minority" representative opinion in their parliaments, they wouldn't be going so far down the path of budgetary austerity. At least that's my read of the perverse dynamics occurring most clearly in Spain and Greece. They have center-right parties which came to power in the wake of economic crisis (simply on anti-incumbent logic) and now they have a free hand to carry out some of their destructive ideological inclinations, even in the face of intense minority opposition.


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