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Sunday, December 13, 2009

Fix the Senate, Part II

Professors Kerr and and DeGirolami have graciously responded to my somewhat silly post knocking the Senate with serious comments. Specifically, professor Kerr cites Federalist Papers #62 and #63 for their defense of the Senate, and Professor DeGirolami remarks that the desire for a younger and less obstructionist Senate is one of "the delusive plausibilities of moral politicians."

I'll use this post to respond to these comments. As I noted in my previous post, my argument is not new--in some respects it's pretty old. So I didn't spell out the whole argument in my original post. But I'll make a broader case for it beneath the fold.

Let me start by pulling my own quote from the Federalist Papers. This excerpt is from Hamilton's Federalist 22:

If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. . . . When the concurrence of a large number is required by the Constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely TO BE DONE, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods.

Here Hamilton accurately describes what I see as our political situation for at least the last twenty years--of a Congress that is, by institutional design, so biased toward the status quo that is incapable of dealing with large-scale problems. More specifically, Congress seems unable--or barely able--to address a broken health-care system, global warming, a disastrous system of financial regulation, a tortuous and economically inefficient tax system, and long-term budget problems that pose a grave threat to the health of the nation.

You might object that this laundry list is an encapsulation of a generic liberal or progressive agenda. And it is! I believe in this agenda, and think the country would be better if it were enacted. And I also think that this agenda would more likely pass if the Senate were eliminated or reformed. Nor do I think that this affinity between congressional reform and progressive politics is transitory. Over time, I believe, a Congress that is more representative, and in which it is easier for a bare majority of representatives to change the law, will be better for a progressive agenda than a conservative one. But I also think that such a Congress would be better in a simple procedural sense. Hence this is a case where my procedural values and my political values coincide.

Now, you might say that I'm just an opportunist--that I'd change my tune if Republicans had a majority in the Senate. But I'm not--I really hope that the Democrats move to eliminate the filibuster next time they are in the minority, if they have that chance. (You don't have to be believe me, of course, but if you don't then why read me at all?). You also might think that the inability of Congress to address these problems reflects the popular will. But, broadly speaking, the conservative majority of the Bush years was also unable to push its domestic agenda through Congress (although where Congressional action was not required--as in agency action--the Bush administration did change a lot). Think, in this regard, of the long-term conservative project of cutting federal spending, which didn't happen despite the recent Republican majority.

I therefore think that we are in precisely the situation Hamilton described "of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods." Which leads us to Federalist #62, written by Hamilton or Madison, and complaining of state-based representation in the Senate:

A government founded on principles more consonant to the wishes of the larger States, is not likely to be obtained from the smaller States. The only option, then, for the former, lies between the proposed government and a government still more objectionable. Under this alternative, the advice of prudence must be to embrace the lesser evil; and, instead of indulging a fruitless anticipation of the possible mischiefs which may ensue, to contemplate rather the advantageous consequences which may qualify the sacrifice. 

In other words, the Senate is a necessary political compromise, and better than the alternative, so deal with it. Fair enough, but not a response to the argument that the Senate is a pernicious institution. FP #62 does go one to make a substantive defense of the Senate's rule of equal representation by state, but that defense is pretty half-hearted, and must be read in light of the previous description of the Senate as a "lesser evil." Moreover, it is not clear that we need live with the same compromise today, when the states have lost, as a matter of practice, much of their sovereign character.

As for professor DeGirolami's comments, I must say I don't get them (although I'm happy to be corrected). They seem to presume that I believe a lot of things that I don't--for starters, the comment that my remarks  are those of a "moral politician" implies that I have disdain for actual politicians, that I consider myself above or better than them. But I don't consider myself above politics--in point of fact, I consider my work to be political, and proudly so. In fact, it is because I respect politicians that I think it is fair to ask them to put the public interest above their own. Sometimes they do, and sometimes they don't. The fact that they sometimes do is what makes me argue for political reform.

As for the remark that a desire for congressional reform is "delusive," I don't get that either. Change sometimes happens; things could be different, and often have been. In point of fact, the Senate has changed its procedure a lot over time; in recent years we've seen an increase in obstructionist tactics like the filibuster and holds by individual Senators. The fact that these practices have changed suggests that they can change back. More broadly, our country has seen massive changes towards political regimes that at one point or another seemed "delusive." We started with a revolution, for God's sakes! We had a civil war sparked in part by tensions embodied in the compromises contained in the Constitution. We got rid of slavery--but we can't get rid of the filibuster, or disproportionate representation in the Senate? It seems like an odd line to take.

Finally, Professor DeGirolami attacks my desire for a Senate that is more demographically representative, by remarking that he doesn't wish for a Senate that is more "gerontocratic." I'm not sure whether this is a knock on the wish for a younger Senate or a broader attack on the desire for a Senate that looks more like the American people. To take the narrower point, I do think the Senate would be better if it were younger (although I won't spell out why here--this post is long enough).  Here you might object that there is no way to guarantee a demographically representative Senate. I agree with this point. It is possible, however, to remove those factors that systemically favor certain demographic groups over others in elections. More specifically, it is possible to reduce the role of money in elections, which would, I believe, result in a younger (and otherwise more demographically representative) Senate.

Now, you might not think that a more demographically representative Senate would be better, or that it could be achieved by reducing the role of money in elections, or that is possible or desirable to reduce the role of money in elections. But I disagree, and am happy to argue these points. In any case, I may be wrong, but I don't think I'm "delusive."

Posted by John Greenman on December 13, 2009 at 07:23 PM | Permalink


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Thanks for the comments, everyone! They are much appreciated. I tend to agree that to some degree feelings toward the Senate track political views. And, of course, democracy (and "representativeness") is an abstract concept that can be implemented in many ways. But my complaint against the Senate therefore is not simply that it is, in a simple sense, antimajoritarian. My complaint is 1) that it's antimajoritarian in ways that obscure political accountability and 2) it's antimajoritarian in favor of certain demographics without any substantive justification. Put another way, no one has explained me to why the votes of people from South Dakota count 24 times as much as people from New York when it comes to electing a Senator.

As for anti-majoritarian obstructionism, let me outsource the argument to Matthew Yglesias:

"At the end of the day the main problem with a supermajority requirement has little to do with specific partisan or ideological concerns. One simply needs to note that bicameralism, plus an independently elected president, plus the congressional committee system, plus a fairly robust system of federalism, plus a fairly robust institution of judicial review constitutes a political system that already has a ton of veto points. The main aggregate impact of all this piling-on of veto points upon veto points is to make it easier than it should be for interest groups to block broad-view reforms.* Adding a supermajority requirement in the senate on to all of that exacerbates the existing pathologies of the system. It also allows each individual senator to drive a harder bargain in the horse-trading and log-rolling sweepstakes in a manner that rarely serves the public interest. Perhaps most important of all, it tends to undermine democratic accountability by blurring the relationship between election results and policy outcomes—what you want is for election winners to be held responsible for the results, but to do that you can’t let the losers play a major role in shaping policy. Similarly, you should want candidates to be held responsible for their ideas, not to embrace policies with a kind of wink-wink you’ll never get 60 votes for that sub rosa understanding that it’s not meant to be taken seriously."

In federal elections, our country uses single-district first-past-the post voting. This system has many significant disadvantages vis-a-vis other systems. But one advantage is that it makes accountability relatively clear. We vote people into office, they pass laws, and if we don't like those laws we can throw the bums out. The effective supermajority requirement created by the filibuster and other aspects of Senate procedure, however, make it very difficult for even this basic heuristic to play out. To wit, voters understand that the Democrats are in power, and rightly will reward or punish the Dems in upcoming elections. But the Dems don't need just 50 votes in the Senate to pass a health-care reform bill. They need 60. So the bill that gets passed will be heavily influenced by Joe Lieberman or Olympia Snowe. But when the time comes for an up-or-down vote the choice will be between Democrats and Republicans. So a less obstructionist Senate would promote accountability by making the choice between parties clearer. And this is true whichever party is in office.

As to specific comments:

George, I am not sure whether HCR is popular or not--it depends on the poll and the phrasing. Certainly some polls show the support for the "public option," as such, is not a majority position. But I am not advocating for direct democracy, and I don't think that politicians should always follow polls. Instead, I am arguing for representative democracy, which, of course, is part of our original constitutional design--politicians pass laws and are voted in or out of office depending on whether the public likes these laws. But, as it currently stands, we have a system in which a party that has soundly lost an election can prevent change without meaningfully taking responsibility for their acts. Again, to take an example, the HCR bill that passes will be significantly different (and worse, in my view) than a bill passed by a simple majority of Democrats, but will be understood as the Democrat's bill. And the converse will be true when the Republicans come back into power.

As for the anti-majoritarian provisions embedded in other parts of our system, they protect substantive values--speech, liberty--unlike the anti-majoritarian bias of the Senate, which, as described in Federalist #62, was itself a product of political compromise. More broadly, our constitutional design entrusts (some) antimajoritarian rights-enforcement to courts with the understanding that the political process will work to enact majority (as defined by representative democracy) views. But the Senate gums up this process.

Marc, as to "obstructionism," the term isn't defined, and to the extent that it just means "standing in the way of something," then of course sometimes it's justified and sometimes not. But to the extent that it means blocking the laws that a majority of elected representatives want to pass (which is, I think, a fair interpretation of the term in context) then on balance I do think it's bad, for the reasons laid out above. (One could imagine a regime, different from the actual Senate, in which Senators were meaningfully accountable for their obstructionism, that would be better than the current system, but still not desirable in my view).

As to the matter of age, the elderly are a distinct ideological cohort with views that differ significantly from those of younger folks. Views on gay rights, for instance, show this very clearly. And it's true in a lot of areas. Now it's true that every old person has been young, and so perhaps there is some sense in which this ideological disparity reflects a movement towards a correct or wiser view. But, in point of fact, people's views tend to ossify at a certain age, and I'm almost certain (although lacking in social science data) that for politicians political ideologies become relatively fixed once they enter public life (except in the rare case when circumstance allows the politician to switch parties). Thus, to the extent that age and ideology are co-travelers, the Senate is out of step with the country--locked into points that younger folks don't believe and won't necessarily come to believe in.

Which would be fine, if the views of the Senate reflected voter preference--again, under a representative model, which allows for representatives to have views distinct from the voters. But, as I argued in my last post, the election process has a systemic bias towards the elderly because it favor the wealthy, along with the other selection biases caused by the extreme disparity in voter power caused by population differences between states.

Finally, you say that I gave reasons for "radical" changes in the Senate. But I didn't actually propose any changes--I only expressed anger at the status quo. But to be clear, I do support changes, as I explained in the editorial I wrote and linked to in the first post. These are: elimination of the filibuster, eliminating the ability of a single Senator to place a hold on Senate proceedings, and other changes in Senate procedure (particularly some reduction in the power of Committee Chairs) that would make it easier to get laws passed. These are sub-constitutional changes, none of them radical in my view--indeed, the rise of the filibuster, strong committee chairs and the individual hold are relatively new in our history. I would also propose some form of pubic financing for federal campaigns--again, not radical, because its something we do already and other countries do more broadly.

As for more radical changes, a more thorough description of the kind of Constitutional revisions I am envisioning is available in Sandy Levinson's work. But I think some rebalancing of power away from smaller states to address the extreme disparities in voting power between citizens of different states would be a good idea. Indeed, to the extent that one buys the original anti-federalist rationale for the Senate, a smaller degree of disproportionate power would still serve the rationale. Perhaps we could rebalance voting power back to the disparities existing in 1789. I am not sure whether this would be radical. In some senses it would be. But, in light of the fact that the Senate was itself a compromise intended to placate certain states, and one disfavored on the whole by the authors of the Federalist Papers, I am not so sure that this is a radical move--more like fixing a design flaw that has been there from the start.

As for the "town hall" vs. the Roman Senate--I'll take the town hall over the Roman Senate any day. Not to get into an off-topic historical debate, but the Roman Senate was, on the whole, not a popularly elected body. Instead it was a selection of leaders from patrician clans. I grant you that to the extent that "town halls" suggests a preference for direct democracy--and it doesn't, necessarily, we have town halls in our system--then my post was misleading. But yeah, I think town halls are good things.

Orin, I'm not a fan of Unger's work or socialism. I'll grant you that some political affiliation for a certain pace of change is connected to my view. But it is a mistake, I think, to identify the status-quo bias of our political system with the political "center." I can't see any evidence of this. Instead it ties us to the past, in ways that might move us to the center, however defined, or not. But, as I have argued, the best way to analyze the system from a purely procedural point of view is whether it furthers accountability, and, if it doesn't do so, whether it serves some real purpose.

As for the general value of bicameralism and the Senate supermajority requirement, I'll leave you with the words of Judge Posner:

"Bicameralism increases the transaction costs of enacting legislation, which can be good or bad (it is bad in national emergencies, as in the financial crisis of last September), and it also increases the cost of repeal, which on balance probably is bad, arbitrarily enhances the political power of sparsely populated states, results in many unprincipled and confusing legislative compromises, and diffuses responsibility for legislation. It is not clear that on balance we are better off with the bicameral system. . . . . A supermajority rule, whether it is the rule of unanimity in criminal jury trials or the supermajority rules for amending the Constitution, makes sense when the cost of a false positive (convicting an innocent person, or making an unsound amendment to the Constitution) substantially exceeds the cost of a false negative. But it is hard to see the applicability of that principle to Senate voting, given the other barriers to enacting legislation."



Posted by: John Greenman | Dec 15, 2009 6:58:29 PM

I am curious -- would you also amend the Constitution to either (1) reduce anti-majoritarian substantive constraints, such as 1st Amendment, or (2) reduce or eliminate other super-majoritarian requirements such as treaty ratification and even the cumbersome process for further amendments to the Constitution?

It seems to me that if it's objectionable to have old rich white guys slow down the majoritarian train, then it's worse to have DEAD rich white guys do so. There may a good reason why some constraints, such as free speech or free exercise etc. are "good" brakes on majoritarian power, as opposed to a general Burkean weight against any change, but why?

If I look at all the wide swings in policy attributed to bare majorities in opinion polls in recent decades, I see enough to give me a headache just from the potential whipsaws. I also see possible counter-evidence to your supposition that it'd be more progressive/left. In the immediate hype of Reagan or Gingrich, would there have been support for a quick abolition of welfare or this or that regulatory scheme? Look not just at what the House passed, but what the House would have passed without the Senate staring back (or with a Senate that looked the same as the House).

I think it might net to the left, but I'm just not sure it's as obvious as you seem to suggest.

Posted by: anonner | Dec 14, 2009 4:29:06 PM

When I was in law school, I took a class with Roberto Unger that was titled "Jurisprudence" but was really about a book Unger was writing. Unger's idea was to give whoever won the most recent election the power to implement their agenda: Unger's view was that the problem with our democracy was that the really strong agendas were never actually tried because everything got watered down. My sense was that the topic grew out of Unger's enduring frustration that the United States had never embraced socialism: I gather he thought that if we had tried true socialism, we would have just loved it.

It seems to me that such issues depend on where you stand on the pace and need for change. I tend to be a Burkean conservative, and my own views are pretty centrist on the American political spectrum. As a result, the idea of a political branch that slows things down and pushes the law to the center is generally going to be a good thing.

Posted by: Orin Kerr | Dec 14, 2009 3:34:13 AM

To paraphrase Clausewitz I think that the debate over the Senate's structure is merely an extension of political debate by other means. If I am correct the gist of your argument is that the nation is unable to deal with its problems. However, if you believe that the health care bill or cap-and-trade are harmful to the country you would want a government structured to make it harder to accomplish. I think that if over the long-term an end to the filibuster would result in a conservative agenda you would oppose it, but of course I may be completely wrong about that.

I would ask one question. Separate from the policy results what independent good would come out of a more democratic Senate? This may seem radical but I don't believe democracy is a good in and of itself. I would prefer a libertarian dictatorship to an oppressive democracy. Obviously, I would never support the installation of a dictatorship because power tends to corrupt and absolute power corrupts absolutely, but the point remains that democracy is just a means to an end. That end being individual liberty and freedom. Again while that sounds radical what exactly is the intrinsic good of democracy?

In an unrelated point about the dangers of too much democracy I would point out that a significant amount of Americans are completely ignorant of the workings of the government and what would actually be good policy. Everyone accepts the point that too much democracy is a bad thing insofar as I doubt anyone would advocate a disastrous system of direct democracy or believes that there are no fundamental rights that should be subject to deprivation by a tyrannical majority.

I would close by saying that I stand with George Washington when he said that the Senate was designed to cool the passions of House legislation like a saucer cools tea. I believe that the Senate is performing this role relatively well.

P.S. I am not sure that the House is being more responsive to the people anyways as I believe that most polls show broad disapproval of the congressional health care plans.

Posted by: George Hooker | Dec 13, 2009 10:28:57 PM

This is a great discussion, thank you for engaging in it. Demographic diversity would be a huge improvement in the senate, which is currently only 17% women, and the racial minority numbers are low indeed as are the numbers for Senators who are not wealthy. But the most important critique of the Senate is a focus on the extent to which it radically favors less-populated areas. From an international business perspective, the United States is unique in this shortcoming - other countries put resources where growth potential exists. The coasts produce a disproportionate share of GDP and yet they receive less federal support per dollar spent in taxes than the less-populated states. While Shanghai benefits from an enormous public investment in infrastructure, New York rots, favoring a shift away from the U.S. as a financial capital. In security terms, Idaho receives far more money per capita than New York even though the threats are different. The Senate, quite simply, disables the nation's ability to make rational decisions.

Posted by: Darren Rosenblum | Dec 13, 2009 9:25:00 PM

John (if I may), thanks for your response, which is much more complete, thorough, and serious than my own comment demanded. My comment was directed at the thought, relied on by your own citation, that there is something inherently defective with the Senate because it is populated primarily by people older than you and me, because it resembles the Roman Senate as opposed to "a New England town meeting," and that it is obstructionist.

While I have my own problems with the Senate, I do not think that these problems, stated in the way that they were in your post and in the article to which you linked, are arguments for "Senate reform." I don't see any arguments in this post that make the claim against obstructionism any more persuasive. Noting that change happens, and change can happen again, is not an argument that I get. Obstructionism has its advantages and its role to play in all of politics, particularly when your political enemies are in power. Don't you agree?

On the gerontocratic point, you don't want to spell out why you think the Senate ought to be younger here. Fair enough. But there are plenty of reasons to be skeptical that wide diversity in age is a desirable quality in the Senate. I agree that other types of demographic diversity are worthwhile, but your post and the article to which it linked discussed age specifically. Hence my response.

On the Roman Senate point, exactly what is preferable about the New England town meeting model? Would that our Senate actually did model itself on the Roman Senate and its republican ideals.

My previous comment spoke to the desire, misguided in my view, to enact reforming change for its own sake, in response to reasons for change that are not, again in my view, persuasive. That doesn't mean that I think the Senate is splendid in all ways or not in need of change, or that *all* desire for change is delusive. It only means that the reasons you gave for changes to the Senate -- changes that would be quite radical -- were not at all persuasive to me. If your claim is that change is intrinsically good because change is itself improvement -- then yes, I maintain that that is delusive, though it's a delusion with a rich academic heritage.

Posted by: Marc DeGirolami | Dec 13, 2009 8:52:17 PM

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