Thursday, December 15, 2011

The Filibuster Revisited, part 2

Another round with Nice Guy Eddie over the filibuster. Eddie got things rolling here, I replied, then he came back to it in his "comments" section. Here's my next installment:

Many years ago, I used to argue for doing away with the Senate entirely. I haven't given that matter much thought in more recent years but I'd probably still lean in that direction. It seems a lot bigger subject than the one on the table though and, honestly, not really relevant to the more narrow question of the filibuster. Feels like a bit of a dodge, Eddie. But it's out there, so I'll offer up a few words on the matter of the Senate's existence. Not to argue for its abolition--not just now, anyway--but to make the case for why it's kept around.

The Senate was created in imitation of the House of Lords, to allow societies' overdogs to act as a check on the more democratic House. Senators were appointed by the state legislatures. That scheme failed miserably, democracy eventually moved forward and we started directly electing them. An element of the original rationale for the Senate does, however, remain: it was a place where states would have equal representation, so the bigger, more populous ones wouldn't be able to dictate everything that happens in government. It isn't, in itself, democratic--it's a compromise that allows democracy to go forward and it's one you can understand because you've already made the argument about the alleged danger of allowing a state of affairs wherein 6-10% of the population could theoretically elect sufficient senators to "enact whatever they want to." Checks and balances.

One of the first and most basic rules of pragmatism is "never let the perfect become the enemy of the good." In refusing to accept the argument that eliminating the filibuster would make things "better" solely on the grounds that it leaves the non-democratic Senate in place, you're violating that rule. Things like getting rid of the Senate and adopting these micro-districts about which you write may be great ideas but they involve massive, radical, controversial change in the basic structure of government. I'm a big one for radical change[1] but if we're going to be pragmatists, those sorts of changes would require multiple constitutional amendments and major, comprehensive changes in the laws of every state in the U.S., while getting rid of the filibuster is a simple matter of changing an internal Senate rule that's arguably unconstitutional anyway. It's true that, in the Senate, "when you’re talking 5-10% either way, you’re about half an order of magnitude LESS than the 50% that a liberal democracy calls for to pass legislation" but what you seemed to forget for a moment there is a) that the Senate can't pass legislation on its own--it requires the much more democratic House. And b) that with the filibuster in place, that democratic body can't pass anything. And I'll go ahead and throw in c) the fact that the math has never worked out that way. 6-10% of the population may theoretically be able to combine and "enact whatever they want" but in practice, they never have. In practice, the senators of 48.7% of the population (in the first 2 years of Obama) were able to block everything the senators representing 74.9% of the population tried to do. No pragmatism-based or democracy-based way to defend that.

"[S]aying, 'To defend the filibuster is to defend its abuse,' is no more profound that me saying 'to do away with the filibuster is to defend the abuse of those who can now act unopposed.'"

...except they don't get to act "unopposed" if the filibuster is removed. They still have to deal with the more democratic House and with the president. This is the democratic process; the filibuster is the negation of that process. If you have any respect for that process, the two are not equal. They're not even close to it. I have no doubt at all that you understand this (and that you do respect the process), but that understanding left you when you wrote things like "if the Senate IS undemocratic ON THE WHOLE, BY DESIGN, then one more or one less undemocratic practice within that structure is, IMHO, immaterial." The fact that the existence of the practice completely neutralizes the democratic process[2] pretty much removes any pragmatic grounds for dismissing it as "immaterial." You say the filibuster should be kept around to "protect the rights of the minority" but it neither protects a valid right of the minority nor has it ever done so. It's just a backdoor way for the losers of an election to continue to rule, and in a democracy, that's not a "right."

Does a defense of the filibuster equal, as I asserted earlier, a defense of its abuse? It absolutely does unless one's idea for reform can prevent the sort of abuse we've seen and here, I'm a bit disappointed you didn't go into your idea of filibuster reform. It's true that I probably would be unmoved by it, but I'm certainly willing to listen.

Perhaps we'll continue.



[1] I suspect your proposed micro-districts would prove quite unworkable but I've been an advocate of proportional representation for years. There are several ways to do it. Most are preferable to the way things are currently done.

[2] And when, as we've seen in recent years, literally everything the senators representing 74.9% of the population try to do is blocked by the senators of 48.7% of the population, the points about the Senate end of the process being theoretically undemocratic don't really hold a lot of water. Obviously, that relates to the recent actual situation in the Senate and doesn't negate the criticisms arising from different theoretical situations but it's another point a pragmatist probably shouldn't overlook.


Anonymous said...

In Germany the upper house (Bundesrat) is appointed by state governments and is meant to represent state interests. That is how it was supposed to be in the US. I think that is a legitimate role for an upper house in a federal system. The problem with the Senate is that unlike the Bundesrat,the number of representatives does not vary by population of states represented. I'd love a constitutional amendment that returns power to state governments to choose representatives to the Senate (thus making state elections very important)and altering the number to better reflect population represented.

classicliberal2 said...

A return to legislators choosing the senators would, by any measure, be a step backwards for democracy. Apportioning an upper house based on population would make it a thing very different from our own senate. If an upper chamber is to be retained at all, the idea is certainly worth a look.