So the question here isn't so much about the change in power now as it is in the change in power over time. That change doesn't clearly favor Democrats or Republicans. Rather, it favors majorities over minorities. And a corrective on that front has been overdue for decades. The only thing worse than a Senate where the majority has the power to govern is one where it doesn't.I'm going to keep banging this one in, because it's terribly important. Removing the filibuster doesn't favor "majorities." It favors one particular majority. Not a policy majority. The party majority.
Remember, nominations that the majority party in the Senate opposes won't necessarily make it to the Senate floor in the first place, even if they would actually win if they came to a vote. Indeed, one can imagine a House-like Senate refusing to bring nominees up for a vote unless a majority of the majority party favors it.
"Majorities"? There's a majority right now for ENDA in the House, most observers believe. There's almost certainly a majority for a Senate-like immigration bill. I suppose it's even possible that there's a majority in the House for some very mild gun legislation. But in a body in which the majority party runs things, those other majorities aren't getting votes.
The thing is that there are multiple majorities on multiple issues at any one time in any legislative chamber. What parties do is structure things so that certain majorities are allowed to express themselves -- and others are suppressed (meaning that in those cases, the minority wins). That's fine; in fact, it's better than fine, since legislatures probably couldn't function very well without that kind of structure. But there's no reason to assume that the party majority is the only majority that matters, or that it's always inherently better (and more democratic) to allow the party to determine which majorities count.
And that's without getting into the more complex question of whether majorities should always win in a democracy. I'm strongly convinced they shouldn't (a classic example is when an indifferent majority is opposed by an intense minority). But put that aside. Again: reforms which favor party leadership simply do not favor chamber majorities in all cases, at any rate. They favor the majority party.
Strict majority party rule is, to be sure, better than strict minority party rule. Or, even worse, the incredibly bizarre situation in which a minority of the minority party intimidates the bulk of that party into doing whatever they say, and then abuses chamber rules to dictate to the majority party some policy which in fact only a slim majority support. So, yes, given the situation, Harry Reid and the Democrats had no choice but to act, and the result is in fact better than what they were faced with. To say that it necessarily empowers majorities, however, is another question altogether.
I am pretty sure that most people understand this. But a world without the filibuster is a world where at least a KIND of majority (and a pretty important kind at that) actually can achieve what it seeks to achieve. That's all anyone means.
ReplyDeleteThe world of the last decade has been one where simply having a majority couldn't get anything done AND even having a party majority wasn't enough either.
It seems that this change does help a policy majority. Granted it is one where it has to be a policy majority which is both supported by a party majority, and key Senators. However something supported by BOTH a party majority and a policy majority should generally come up for a vote/be approved. With the filibuster you could have nominees which are supported by both a majority of Senators, as well as the majority party, and have it not go anywhere.
ReplyDeleteThis is an excellent post, Jonathan. Well written, too.
ReplyDeleteI totally understand why people are so keen to get rid of the filibuster. I cannot for the life of me understand why --- given the shining example of majority-rule just a football field south of the Senate --- they do not understand that there are both positive and negative consequences to doing so.
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What are the negative consequences, again?
DeleteIf you say, more power in the hands of the majority party leadership, I ask: Why is that a negative? More to the point, how exactly does majority rule necessarily lead to House-style majority party tyranny? Seems to me you could easily pass a rule saying that a petition with majority+1 of members would automatically result in a vote.
There are plenty of other nearby examples of reasonably well-functioning bicameral legislatures in which both chambers operate by majority party rule in Annapolis, Richmond, Dover, Harrisburg, Charleston, Raleigh, Trenton, etc.
Delete1) In the context of Ezra's piece, it is clear that he is referring to majority parties, not just any random collection of 50+ senators. (His use of the plural "majorities" is an allusion to future majority parties; he is not suggesting that there are multiple "majorities" at any given time, all of which will benefit from the lack of a filibuster)
ReplyDelete2) Majorities should always win in a democracy. Full stop. Of course, that doesn't mean that minorities shouldn't or couldn't be protected. Something like a Bill of Rights is necessary, in a democracy, to prevent a majority from unilaterally robbing minorities of basic rights. But if those protections are agreed upon at the outset, then that's an example of majority rule as well! If not, it is a collection of elites mandating what the peoples' elected representatives can and cannot pass. That may be "good" in some circumstances but it is not democracy.
3) Acceding to minority demands "when an indifferent majority is opposed by an intense minority" strikes me as pretty much the polar opposite of democracy. In fact, replace "intense" with "influential" and it pretty much describes the current situation in the House which everyone deplores so much. Replace "intense" with "well-armed" and you've got yourself anarchy. No one gets to vote twice in an election just because they feel really strongly about their candidate; it should be no different in an ostensibly "democratic" legislative body.
I think what we're seeing here is that it doesn't really matter what the philosophical arguments are for or against the filibuster. (And let's be clear that it wasn't part of the Framers' design; it arose accidentally when they changed one rule and didn't change others to match.) Long-term, the filibuster destroys itself, because it's -- apparently -- too tempting for the minority, which will eventually abuses it, yet amenable to change by the majority, which can't tolerate that abuse. When the history of it is written, maybe what we'll see is that what it basically did was signal to constituency groups in the minority's coalition that they should keep levying demands on the out-party, under threat of primary challenges and so on, because the out-party still had considerable power. Maybe now those groups will settle down a little. Or not; I'm just speculating. Anyway, asking whether we should or shouldn't have a filibuster is like asking whether I should or shouldn't have an open campfire in my apartment. Yes, it's better for grilling if I want that smoked-wood flavor, but eventually it burns the building down. Thus the question settles itself.
ReplyDeleteGood point. And amusing to boot.
DeleteWell, the filibuster had a pretty long run (and it's not even gone yet), so whatever the long-run stability, it's still pretty interesting, no?
DeleteI'd say there are two types of arguments here. One is the filibuster and democracy, which is (I'll readily agree) not going to matter much, except to the extent that a very small number of people care about it and might have some very small influence. In the event, where that matters is that the balance of opinion is for majority (party) rule and against the filibuster; I suspect that matters a bit, at the margins.
The other question is about the incentives of the various players, the main ones of whom are Senators. We can say quite a few sensible things there, it seems to me, beyond saying that in the long run the filibuster was unstable. Indeed, I'd say that one of the things that filibuster history shows which we might care about even after its (presumed) final demise is that contingency and path dependency actually do matter quite a bit to how institutions turn out, even given a particular set of overall (Constitutional) rules of the game.
No question, the filibuster lasted an astonishingly long time. I hope that political scientists will now get to work explaining this -- not just speculating about it, and not just explaining what brought it to an end, but detailing the causal factors that allowed it to survive with relatively little abuse for more than a century and a half. My own layman's guess would be this: the filibuster is a lagging indicator of shifts in the relative power of party actors. Senators of old, answerable to home-state party bosses, newspaper publishers and so on (see Mr. Smith Goes to Washington), had incentives to preserve the overall system -- the power of individual Senators, and of the ruling elite in general -- at the expense (if need be) of of ideological or particular policy goals. Now that they have to answer directly to constituency groups, the ideological and policy goals loom much larger, and the general functioning of the institution over time is a lesser concern. But again, that's a guess; I await the data and the detailed studies, and look forward to reading about them here first.
DeleteBinder and Smith have a great book on this topic. Koger also covers it extensively in his book.
DeleteThanks, Matt. And see? I'm reading about them here first! :-)
DeleteWhat Professor Bernstein misses is that what you want to do is give party majorities as much power as you can because then they will be held responsible when they do not act in line with policy majorities.
ReplyDeleteWhereas with the idiotic Madisonian system with all its veto points, politicians can avoid responsibility for blocking things the public wants.
Oh, I understand that people think that "responsibility" thing. I believe it is wrong.
DeleteJudges are an excellent example; executive branch nominations an even better one. The public surely doesn't "want" anything having to do with DC Circuit or NLRB confirmations; it's extremely difficult to see how parties can be "held responsible" for things that hardly any voters will know about. And even if voters somehow did know about such things, virtually none of them would switch their votes on them, as opposed to things such as the economy or war and peace -- if, that is, voters even base their votes on such things and not on ethnic, cultural, or other affinities. And even if they wanted to, what exactly are those voters to do when they agree with one party on, say, NLRB filibusters and the other on DC Circuit nominations?
On the big obvious stuff which we know does affect votes, I take the arguments for "responsibility" seriously, although even there I believe they are wrong. But on this other stuff? It's beyond extremely dubious.
There are these things called parties which can make people aware of things not being done. And whoever is in charge is held responsible.
DeleteBut thanks to Madison, it is possible to block things in ways that are too complex to explain to the public.
Also, you talk contempuously about people voting tribal affinities. But which system is going to feature more of that-a parliamentary system where if they screw up the country they will get blamed, or our system where tribal voting can send idiots who can cause chaos without having clear lines of accountability?
DeleteI really doubt that responsible party government is possible on most issues. On big ones (war, really), it is. But, outside of war, I really have trouble with the argument. The economy drives much bigger seat swings than any policy votes. When policy votes do lead to defeat, it's usually anti-majoritarian (riling up the opposing base in a midterm election, so its a turnout fight not a plebiscite).
DeleteWhich system has stronger partisanship? I don't know. I actually suspect its the parliamentary system, particularly if it supports a lot of parties, with elections being decided by the uncommitted middle.