by publius
Today’s NYT contained a welcome article on how the GOP has transformed the filibuster into its primary legislative strategy. On balance, I think the filibuster is a bad idea (though I would keep it for lifetime judicial nominations). But that said, the filibuster is getting a bum rap these days in progressive circles. The problem is not so much the filibuster itself, but that the filibuster amplifies the deeper, structural malapportionment of the Senate – the malapportionment being the true obstacle to progressive legislation.
After all, assuming that representation is fairly evenly apportioned, requiring modest supermajorities for major legislation has its benefits – e.g., protecting the rights and intense preferences of minorities. However, if the underlying representation is not evenly apportioned in the first place, supermajority requirements can start inching toward the line of political illegitimacy.
Because we political junkies focus so closely on Senate vote tallies, it’s easy lose sight of the numerical reality that these cloture votes represent. More precisely, it’s easy to ignore just how massive the malapportionment is, numbers-wise, when we focus only on Senate votes.
To illustrate, consider the recent Webb Amendment, which required longer leaves for active-duty soldiers. The amendment essentially passed 56-41, but fell short of the magic number needed for cloture. That’s a wide margin and all, but it doesn’t really make you flee to the desert to rethink the foundations of our constitutional order with an elderly Native American spirit-world guide.
However, if you shift focus away from Senate votes and look at actual population, the filibuster takes on a whole new – and more disturbing – meaning. Below, I’ve provided numbers that reflect the number of Americans represented by Senators who supported – or opposed – the Webb Amendment.
Here’s how it worked. If both Senators from a state voted for cloture (i.e., voted with Webb), I assumed the entire state’s population supported it. If both senators opposed cloture, I assumed the entire state opposed it. If a state’s Senators split, it’s basically a wash – I put half the population in one box, and half in the other.
I readily admit that it’s not the best methodology in the world. It assumes, for instance, that all 36 million people in California supported the Webb Amendment. At the same time, though, it assumes that all 23 million Texans opposed it. Anyhoo, here are the numbers:
Both Senators in 21 states voted for cloture. The combined population of these states is 132.7 million.
Both Senators in 15 states voted against cloture. The combined population here is 81 million.
The Senators split in 14 states, which had a combined population of 83.8 million.
Under these assumptions, the Webb Amendment lost even though the pro-cloture coalition represented 50 million more people. That’s a fairly staggering margin – and one that isn’t exactly reflected by “56-41” cloture votes.
Assuming the methodology makes these numbers meaningful (I’d welcome comment on that), the next question is “so what?” I fully recognize that the two-Senator rule was a precondition of the nation’s original political agreement. And as I said above, protecting minority interests has important benefits. But at some point, the sheer numerical imbalance seems to crack the foundation of the Senate’s legitimacy (at least on non-constitutional matters such as the Webb Amendment). Fifty million is a pretty big number after all.
I suppose the ultimate question is simply whether numbers matter at all (on non-constitutional issues). If you disagree with the thrust of the post, my question to you is whether numerical imbalances could ever be relevant to the legitimacy of the Senate? What if the margin reached 100 million? 150 million? It just seems that, at some point, something’s got to give.
I don’t think that switching from Senators to population makes much of a difference in this case. The final score with the population tallies looks to be 174.6 million in favor, 122.9 million opposed. That puts 58.7% of the population on the aye side, which is still less than the 60% required for cloture, and not much more than the 57.7% of Senators voting aye.
100,000 or so loyal, mobile Democrats willing to move to Alaska, Wyoming and New Hampshire for a couple weeks and register to vote whenever a Senator was up for re-election in those states would put 6 Senators in the D column…and take them outta the R column.
100,000.
Talk about an easy revolution.
Blar is right. The theoretical problem is huge – if all the small-state senators ganged up to filibuster something you’d get some truly shocking figures out of this kind of exercise – but this is not what happened here.
Nevertheless, I can definitely sympathise with Publius’s gut reaction – after all, we are talking about a country where in his first term the President managed to claim a huge mandate to govern out of a margin of -0.5m…
I don’t think that the problem is so much a deep problem in the Senate it is a problem with our country loosing sight of the very foundation of democratic government, which is compromise.
I agree with your gut reaction but we have to find ways to treat the problem and not the symptom. This is a culture problem and not a systemic problem. Politics in congress has turned into more of a procedural trivia game then a place where solutions are created.
I want to believe that most of the people in the House and Senate are well meaning, and want to fix things but government should not be a game of “who can make a procedural end run around compromise”.
I want to believe that most of the people in the House and Senate are well meaning, and want to fix things…
Way too much optimism for a Monday morning. 😉
Good post publius. You are really carrying the load around here lately.
I don’t see how this assertion:
“the two-Senator rule was a precondition of the nation’s original political agreement”
squares with this one:
“But at some point, the sheer numerical imbalance seems to crack the foundation of the Senate’s legitimacy.” (emphasis added).
The Senate’s legitimacy does not depend on the extent to which its decisions square with the preferences of a majority of voters. The one has nothing to do with the other.
The entire checks-and-balances system was designed so its legitimacy was enhanced by virtue of the difficulty of passing legislation, so that when a bill actually does get passed, it’s clear that it’s not just simple majoritarian whimsy, and that minority opposition had a fair shot at stopping it.
And I’m sure you’ll appreciate that more the next time a bill you hate gets filibustered or killed.
dig – the difference b/w say virginia and delaware in 1787 is far less than the diff b/w california and wyoming. so it’s possible an arrangement could be initially legitimate, but grow increasingly illegit with increasing disenfranchisement
The problem isn’t so much with the filibuster–it’s with the way the Senate Majority leader isn’t requiring the filibuster to bring some pain with it. It’s easy to say “filibuster” because you don’t actually have to stand on the floor of the Senate and talk–all you have to do is say “I’m going to do it,” and that’s that. If Reid would simply say to the Senate as a whole, “you want to filibuster, fine, but we’re going to do it old school,” suddenly you’d get a lot more up or down votes, I’d bet, because the last thing most of these people want is to be inconvenienced.
But at some point, the sheer numerical imbalance seems to crack the foundation of the Senate’s legitimacy
DIG is right. There is no question of legitimacy here based on population. You could argue the filibuster is not a valid exercise of senate power under the Constitutional provision allowing each house to determine its own rules.
IMHO, the problem here is one of attitude towards federalism. “Legitimacy” arguments like this and other such arguments (like calls for the popular vote) ignore that this country is a union of states. Comparing populations of various states vis-a-vis Senate votes was a matter of debate prior to the Constitution. It certainly can be now, but by necessity it should be couched in terms of a Constitutional amendment, not a genuine question of legitimacy.
Uh, Publius, as a liberal, haven’t the years from the 2002 mid-term elections at least mildly shaken your faith in the principle of 51% of the population being able to s*** on the other 49% with impunity?
(And yes, I *am* straw-manning a little bit to make a point.)
They’re the same cloture rules as when the GOP was in power, and I don’t remember hearing any Dems complain about cloture when they were in the minority.
They’re the same cloture rules as when the GOP was in power, and I don’t remember hearing any Dems complain about cloture when they were in the minority.
I do, however, remember a lot of Publicans screeching and threatening they were going to vote to end the filibuster option on the rare occasions when Democratic Congresspeople made use of it.
The minute they were in office as a minority party, of course, they started using the threat of the filibuster on a regular basis to block everything that the 2006 Congress was elected to do. I’d call it shameless hypocrisy, but that seems understatement.
I’m not sure the cloture rules are the issue so much as the extent they have been utilized by the GOP.
The previous record for filibusters in a 58 in one term. As I understand it the GOP is on a pace to more than triple that this term.
Which is their right under the rules. But it makes for hilarity when they do this and then their constituents complain about the do nothing Democrats in Congress.
Are they just incredibly intellectually dishonest? Or just plain old fashioned idiots?
They’re the same cloture rules as when the GOP was in power, and I don’t remember hearing any Dems complain about cloture when they were in the minority.
IIRC, the GOP is set to more than triple the record for the number of times the filibuster has been used in a single Congress.
this, from a party that threatened the “nuclear option” over the hint of a filibuster against Bush’s nominees.
there’s hypocrisy and then there’s Hypocrisy
“They’re the same cloture rules as when the GOP was in power, and I don’t remember hearing any Dems complain about cloture when they were in the minority.”
The Minority Party (whoever they are) rarely does, Charles: why the surprise?
Or was it just that the complaints (if any) from Democrats in prior Congresses, were drowned out by the collective “harrumphing” from conservatives and Republicans outraged – just outraged! – that the Senate might take its Constitutional duty to confirm or reject judicial nominees seriously – as Republicans did to many of Bill Clinton’s choices. IOKIYAR, I guess.
Help! Help! I’ve been bolded!
Not sure why “50 million” is relevant other than that it sounds big to the innumerate. As Blar points out, that’s a 58.7-41.3 split, which is well below the various three-fifths and two-thirds rules found throughout the constitution and parliamentary procedure.
But the more fundamental mistake here is bringing in population totals at all, since the Senate isn’t even supposed to represent “the people”, it’s supposed to represent states as states.
Eeyn524, I agree with your point about innumeracy, but nowadays I think “one person, one vote” is considered a basis of legitimacy more than “one state, one vote”. And Americans move around a lot more than they used to, so I don’t believe most feel so much attachment to the states they happen to live in — though certainly there’s enough emotional attachment to the states that it wouldn’t be possible to reconfigure the map into something more even and national.
And as I said above, protecting minority interests has important benefits.
This is the part I don’t get (and have never gotten). Why, precisely, should a geographic minority be granted increased voting power? Other sorts of minorities don’t get anything of the sort, and for good reason. I have yet to hear a valid argument in defense of this system that was not of the form, “Well, that’s the way the system was created.”
Because people in a geographic area should be able to govern themselves as they please without interference from everyone else, unless you’ve got very, very strong majority support from a wide section of the rest of the country. This is a reasonable compromise between “a loose confederation of states” and “centralized majoritarian rule,” both of which aren’t very good systems.
the state issue is correct, but it’s also sort of the point. at some point, the urban/rural imbalance (i think) calls into question using states as the baseline for representation. it seems a bit arbitrary to for states with 36 million and 500K people to have the same represetnation, simply b/c of arbitrary line-drawing
Why, precisely, should a geographic minority be granted increased voting power?
IIRC, that’s because the States were originally supposed to be much more independent and powerful than they are today, and that the federal govt wouldn’t have as much of a hand in our everyday lives as it does now – federal action would be rare and would be seen as a Big Deal, since it infringed on what the separate States could do. so, to protect the smaller States from being overrun by the desires of the larger States, one house was set up without concern for population or size. everybody’s equal, in that one place, at least.
Because people in a geographic area should be able to govern themselves as they please without interference from everyone else, unless you’ve got very, very strong majority support from a wide section of the rest of the country.
And that explains why, when panderers to the homophobe vote proposed that the Constitution should be amended so that GLBT Americans should have fewer rights than straights no matter which state they lived in, the Senate uniformly voted down DOMA and denounced the “Defense of Marriage” amendment to the constitution.
Oh sorry, that happened in the other universe where Senators really do care about the Constitution and “state’s rights”.
Ari @ 11:40:
In a nutshell: “Federalism”.
The United States, from the beginning was conceived as a voluntary union of more-or-less self-governing entities: the original 13 colonies (of wildly varying sizes, populations, economies, etc.) – and their sucessor polities, the State governments had to be coaxed (the smaller ones, anyway) into signing on to the Constitution with guarantees that their influence in/with the Federal Government would not be diluted purely on the basis of population.
Of course, the US Senate has its flaws: but few political systems don’t.
One slight improvement to the Senate — admittedly a kluge, but one that’s more likely to happen than a complete overhaul of the structure of government — would be to have DC become a state (actually or effectively). Yes, it would be yet another small state with as much representation as California, but the people of DC are very different from those in the other low-population states. Adding two DC senators would help with the underrepresentation of urban Americans in the Senate.
And of course, giving DC residents the same say in how their taxes are spent that all other Americans have is simply the right thing to do.
Because people in a geographic area should be able to govern themselves as they please without interference from everyone else, unless you’ve got very, very strong majority support from a wide section of the rest of the country.
But that doesn’t justify giving geographic minorities disproportionate influence on matters of national governance, including judicial appointments, military matters, budgets, and so on – in other words the vast bulk of what the Senate deals with. On national issues, I see no reason Wyoming should have the same say-so as California.
I’m with Ari. The argument always seems to come down to:
“Well, that’s the way the system was created.”
Ari and Publius:
it seems a bit arbitrary to for states with 36 million and 500K people to have the same represetnation, simply b/c of arbitrary line-drawing
Read the Federalist Papers. No. 62, for example.
I’m not sure how drawing state lines was “arbitrary” as the states existed prior to 1789 and subsequent states were created by acts of congress. Statehood has always been a big deal.
I’m originally from Alaska and now live in California. Cleek and Jonas Cord have it right. It’s ridiculous to have someone from more populous states dictating matters of ordinary concern to those living in such different situations. The Senate protects that interest.
And the founders thought passing no legislation preferable to passing too much. I share that view.
One of the nightmarish aspects of fundamentalists is they genuinely believe that coexistence and pluralism means denying their faith.
Whether most Republicans are fundamentalists or not, they most certainly act like it.
The United States, from the beginning was conceived as a voluntary union of more-or-less self-governing entities: the original 13 colonies (of wildly varying sizes, populations, economies, etc.) – and their sucessor polities, the State governments had to be coaxed (the smaller ones, anyway) into signing on to the Constitution with guarantees that their influence in/with the Federal Government would not be diluted purely on the basis of population.
Jay C.,
To what extent does this apply to states who came in after the original 13? did they have to be coaxed? I don’t know much about the specifics myself. Is it accurate to say that Nebraska or North Dakota, for example, would not have joined up without equal representation in the Senate? And what about the re-admission of the Confederate states? Is it possible the continuation of the two-per-state rule was more a result of inertia than anything else?
I think one other major problem is the existence (and rigidity of) political parties (I’d say the Republicans are more rigid/disciplined/uniform in this sense, at least, than Democrats). The idea that 41 Senators can stop any SINGLE piece of legislation from passing isn’t terribly unreasonable, for all the reasons well outlined by other commenters. I think the problem is that 41 Senators can stop ALL pieces of legislation. I know Publius has written before on the problems with political parties in the U.S. system (after all, a different system with different rules might deal with parties much better), and I’m thinking this is another example.
Publius,
You appear to have the misconception that democracy itself is important, and not simply “the appearance of democracy.” Add to the fact that people want to believe they are empowered (due to major inertia and fear), and there’s no actual imbalance that will change things.
Bruch up on your Schumpeter. 🙂
this is all explained in The Monkeysphere
… The Monkeysphere.
I think publius is quite clearly talking about political/moral legitimacy, which is not identical to legality: e.g., denying the vote to women was illegitimate even when it was legal. So appeals to what the Constitution says to some extent miss the point. He’s also talking about political legitimacy TODAY, not in 1789–so saying that the “United States was originally conceived as X” doesn’t really address the point either. Again, the United States was originally conceived as a lot of things, plenty of which we’d no longer regard as legitimate. And the idea of states as really having sovereignty has lost currency. Very, very few people have a non-results-driven commitment to federalism.
Evaluating it on the merits, today, I don’t think unequal representation in the Senate is justified. Of all the minorities that need special protection, residents of small population states are low on the list; it doesn’t trump “one man one vote.” I’m pretty sure the Supreme Court would find it unconstitutional for a state gov’t to elect its state legislature that way. Also, the Senate is only one of several ways in which low-population states are over-represented: they’re also overrepresented by a smaller margin in the electoral college; in the amendment process; and to a lesser extent, even in the House (because the # of House members is capped & each state has to get at least one). Would you favor racial & religious minorities getting that sort of deliberate overrepresentation? They’re certainly more in need of protection.
That said, in practice, it hasn’t been THAT harmful, because most political disputes don’t break down neatly along big-state/small-state lines. The one publius cites in the post doesn’t–the popular vote percentages & the Senate vote percentages are extremely similar.
(An increasing # of issues do lead to an urban-rural split, & the underrepresenation of urban areas is a big problem, but there’s not a perfect correlation between “small” and “rural” or “big” & “urban.”)
It’s not a cohesive, dominant, oppressive group being overrepresented as such–e.g., white people being systematically given extra votes. If I were re-writing the Constitution today I’d certainly NOT overrepresent low population states, but in practice, the two clearest instances of overrepresentation–the Senate & the amendment ratification procedure–are almost impossible to amend. Small states are about as likely to ratify an amendment diminishing their power in the amendment process as New Hampshire citizens to vote that someone else’s primary should go first. And the Senate provision says it’s unamendable. I don’t see how you get rid of those without calling a new Constitutional Convention. I’d oppose that because there are other parts of the Constitution that I want to keep, & would worry about being scrapped, more than I want to get rid of this.
Also, I agree that the non-“one man, one vote” nature of the Senate is less legitimate than a supermajority requirement, but the REAL imbalance with the filibuster is that the GOP will use all the procedural tools at its disposal to stop bills it opposes, & the Democrats won’t.
They’re the same cloture rules as when the GOP was in power, and I don’t remember hearing any Dems complain about cloture when they were in the minority.
Does Mr. Bird know what the word “hypocrisy” means?
IOKIYAR.
The fact that there are relatively few House members (compared to what the number would have been if the population per representative had remained fixed) and that members occur only in integral numbers leads to under- as well as underrepresentation, and that occurs at all populations levels.
The House overrepresentation is biggest for small states, because having 1 rep when you deserve 0.7 of one is more of a problem than having 6 reps when you deserve 5.7. But the underrepresentation is also biggest for (a different set of) small states, because having 1 rep when you deserve 1.5 is a bigger problem than having 6 when you deserve 6.5. Montana, for example, has more than 900,000 people with one 1 member in the House.
That’s true, but I’m not sure that having the Democrats become as unreasonable as the Republicans is the answer. It’s true that Republicans have done pretty well for a while by being as unreasonable as possible (and they’d certainly never have lay down and accepted the 2000 election results if the situation had been reversed), but I’m hoping that that success is coming to an end.
Of course, the media now seem to have accepted the idea that 60 votes is the normal requirement for any legislation to pass the Senate, so my hope to return to sanity may be a forlorn one.
That said, in practice, it hasn’t been THAT harmful, because most political disputes don’t break down neatly along big-state/small-state lines. The one publius cites in the post doesn’t–the popular vote percentages & the Senate vote percentages are extremely similar.
that’s an important point
KCinDC is correct about the House. My initial response began: “yeah, but in the electoral college…!” But that’s, of course, an argument about the electoral college, not the House.
Charles has not only magically forgotten his principled argument from a few years ago that the Constitution requires the majority party to get its way–he’s also forgotten the specific arguments that a lot of us were making during the whole “nuclear option” debate. One of which was: the 45 Democrats in the Senate are a minority of that body, but they represent a majority of the U.S. population.
the difference b/w say virginia and delaware in 1787 is far less than the diff b/w california and wyoming. so it’s possible an arrangement could be initially legitimate, but grow increasingly illegit with increasing disenfranchisement
It would be just as easy to argue the opposite position, however: the greater the population imbalance between the states, the more protection small population states need against the coercive power of the large population states; thus the Senate is playing the exact role the Framers envisioned for it.
the greater the population imbalance between the states, the more protection small population states need against the coercive power of the large population states;
Protection against what? If most issues are national in scope it seems to me that the large numbers of people in heavily populated states need protection against the coercive power of the vastly over-represented small number people in the small states.
The notion of states as logically important entities, rather than simply political ones, does not make sense to me.
Even the importance of states as political entities seems overblown. In 1787 people presumably thought of themselves as Virginians first and Americans second, but I don’t think that’s true for very many people today. As Katherine said above, most of the supposed commitment to federalism is about achieving specific results on certain issues.
If there is no system of regional representation, people who live in unpopulated states will start to feel that their needs are ignored or disregarded by the majority living in states with larger populations.
There may be better ways of doing this than the US Senate (there probably are many, given that the Senate is a creaky 218 years old) but the need is real.
Katherine,
“One man, one vote” is a good principle, but not in a vacuum. A simple majoritarian system meets that standard and would be completely unjust. Without things like the Bill of Rights and Federalism to moderate majority rule, you don’t have much in the way of freedom or self-determination.
If I recall correctly, the States are required to have a republican form of government – which I’m pretty sure could allow some very counter-majoritarian systems if the States were so inclined.
You think the small states will stick around if they are forced to live under a constitution that’s going to be amended whether they like it or not? The fact that the constitution is hard to amend is about the closest to the opposite of a problem as one can get – it’s a blessing.
Jes, people who live in unpopulated parts of an individual state may feel disregarded by the rest of the state, but state legislatures are based on population, not geographic area or counties or something else that would overrepresent those unpopulated areas.
Everyone is right that most people treat Federalism as a card to play for only specific, pet issues where it works to their advantage.
But really, is it a good idea to have most issues be national in scope? Is there any need for me to have to argue with a guy from Kansas about evolution being taught in schools? Is there some reason why we need a national consensus on the water consumption of toilets, when some areas are flush with water and others in draught?
I don’t believe in federalism when it comes to civil rights. But god, do I wish we could have it back with just about everything else.
Jonas, I can understand that feeling in a small state, but I’m not sure where the magical population dividing line comes from that says its fine for 36 million people to have decisions made in Sacramento but an outrage for 300 million people to have decisions made in DC.
And a lot of the push for national regulations comes from business interests wanting to avoid having to conform to regulations from 50 states and thousands of counties.
No, “one man one vote” is required in state elections under the equal protection clause.
As for amending the Constitution, it’s theoretically possible for the small states to gang up & push through an amendment that the large population states, and a majority of the U.S. public, opposes. It looked unlikely but not inconceivable that they’d do this for gay marriage. Which would have infuriated me: a minority of the U.S. constitution stepping in and screwing with the marriages of people in Massachusetts. And yet, I doubt it would have led to secession.
As far as I’m concerned, states don’t have natural, moral rights. People do. Federalism might protect those rights, but it might not.
KCinDC,
That’s a fair point. I haven’t reflected on this enough to have principled, specific guidelines. But several levels of local self-determination I think is not only the right thing to do, but a good way to avoid overly contentious politics.
And to them I say: boo hoo, it’s so hard to be you. (None of my business ventures have the benefit of uniform, national regulation, so they can bite me.)
infuriated me so much my syntax fell apart remembering it, apparently.
Bottom line: an amendment process that gives North Dakota as much say as California also gives each Californian as much say as 1/70 of a North Dakotan. We don’t have that, quite: a Californian’s vote counts 1/70 as much in the Senate, the same in the House, & 1/70 as much as far as state ratification. If you view the Constitution as primarily a bargain between the U.S. electorate & their national government, as opposed to primarily a bargain among sovereign states, that’s not morally defensible. And that is how I view it, & I think how most Americans view it.
Jonas: ? Is there any need for me to have to argue with a guy from Kansas about evolution being taught in schools?
Yes, because kids everywhere in the US deserve to have the same quality of education. A kid in Kansas didn’t choose to be born there and doesn’t deserve to receive an inferior education because of it.
KCinDC: Jes, people who live in unpopulated parts of an individual state may feel disregarded by the rest of the state, but state legislatures are based on population, not geographic area or counties or something else that would overrepresent those unpopulated areas.
I thought we were talking about the US Senate, the federal one, not the state senates?
I suggest that the argument is actually as to whether one believes in the legitimacy of States and state government, and the federal system in which they’re organized.
I suspect a number of folks don’t, and a number of folks do, and thus opinions differ. Or, at least, opinions vary as to how strongly or weakly one believes in those things.
Katherine,
Yes, but no one has ever taken that to mean that there should just be one big unicameral majoritarian free-for-all.
Sure, but under your EZ-amend non-federal system, this sort of thing would be happening all of the time – year after year after year. States would begin to consider secession when it became too much, for whatever reason.
I don’t think they have natural rights, but the ninth amendment does seek to preserve the rights held by both people and their states.
“Yes, but no one has ever taken that to mean that there should just be one big unicameral majoritarian free-for-all.”
Which is entirely irrelevant to my point. States can have Senates. But they cannot apportion their votes by giving one Senator to each county, regardless of population. If New York State tried to organize its districts so that the 2 million-odd people in Kings county got the same # of State Senators as a county upstate with 40,000 people, that would violate the 14th amendment & be unconstitutional, according to the current precedents. (See Reynolds v. Sims. I’m guessing you don’t agree with that holding, but that is what it says.)
And I’m not suggesting “EZ amend.” The question of how hard it is to amend the constitution–whether you require supermajorities, multiple steps, etc.–is just not the same as the question as whether a Californian & a North Dakotan get the same vote or not.
Jes,
Well, there’s no need for everyone to have the same quality of education when everyone does not actually agree what “quality” means, and what is “inferior.”
The parents chose to live there and enroll him there. It’s their own child and their own school paid for with their own tax dollars, which is why their voice and their vote should be far more important than mine or anyone elses.
We are, but my point is that your defense of the system on the national level would imply that a similar system would be necessary (or at least justifiable) at the state level, yet somehow the state legislatures get along.
Katherine,
Thanks for the link on Reynolds vs. Sims. I think that a ruling that allowed unqual districts if it’s set up as it is in Congress (one majoritarian chamber, one not) then it should be allowed. But it looks like States had some pretty messed up districts and systems, so I definitely understand the problem there.
Boy, I botched that sentence:
I think that a ruling that allowed unqual districts if it’s set up as it is in Congress (one majoritarian chamber, one not) would be preferable to one that prohibits any variance.
“I don’t think they have natural rights, but the ninth amendment does seek to preserve the rights held by both people and their states.”
The 9th amendment doesn’t contain the word “states” or any synonym. The 10th amendment does, but is phrased in terms of powers, not rights. You can say that the 10th it creates a legal right by the states, as states, not to have the federal gov’t encroach on their powers. But I wasn’t really disputing that states can have that sort of right, & people who are invoking “state’s rights” in debates like this one are usually making a moral/legitimacy argument rather than a pure legal one.
One problem is that states who had unequal representation had it unequal on a less benign basis than the U.S. Senate: a systematic effort to disenfranchise racial minorities, say. Even the analagous situation I discuss in New York State, systemically disenfranchising urban areas, would be worse.
As far as Kansas schools’ curricula: I think it’s my business if another U.S. state is trying to establish a religion, in defiance of the First & 14th Amendments.
But really, is it a good idea to have most issues be national in scope?
I don’t see how you avoid it. The federal budget is a national issue. So is immigration. Wars are national issues. At least some – probably most – environmental matters are national issues. Supreme Court appointments are national, and so on.
As for regional representation (who are these people who live in unpopulated areas, anyway?), let’s not conflate political views with legitimate regional interests. It’s true that people living in a particular region tend to hold similar opinions, but this is no reason to give states disproportionate representation. On national issues, Mississippi is conservative, and Massachusetts is liberal. But that doesn’t mean that there is any sort of real regional issue there that justifies giving MS, with less than half the population of MA, equal influence on policy. On the subject of war, for example, I see no reason to grant the three million residents of MS any more weight than we give any other set of three million Americans.
KCinDC: We are, but my point is that your defense of the system on the national level would imply that a similar system would be necessary (or at least justifiable) at the state level, yet somehow the state legislatures get along.
Not necessarily. Your point would imply that there is no difference between a state in the US and the US itself. The US is bigger, and there are cultural differences between the states.
I don’t say the US Senate is perfectly set up. I just say I can see the need for having a form of regional representation for the whole nation, which isn’t based on population per state, given that the states vary so widely in population.
Jes, there are cultural differences within states too. Yes, the US is bigger, but what is the population threshold between 36 million and 300 million where suddenly it becomes necessary to make special provisions for people in less populated areas within the political entity?
Jonas: “The parents chose to live there”
There are significant limitations on that “choice” for many parents, it seems worth noting.
Which isn’t to say that I disagree with the rest of your paragraph.
Bernard: “But really, is it a good idea to have most issues be national in scope?
I don’t see how you avoid it. The federal budget is a national issue. So is immigration. Wars are national issues. At least some – probably most – environmental matters are national issues. Supreme Court appointments are national, and so on.”
“And so on” doesn’t go very far to actually demonstrate that most issues that come up in a state legislature should be national instead.
I fully agree that many issues need to be addressed at the national level.
Just as I fully agree that many issues are more appropriately addressed at the state level.
What the actual ideal proportion would be in my judgment, I have no idea. I expect I’d have to do, or more plausible, find, a study of a sufficient number of legislatures and their issues over a few decades, and compare them to how the federal government has addressed them, and then pass judgment.
That seems impractical. Do you know a better way of ascertaining actual numbers as to whether, in fact, “most” issues we address in this country “should” be addressed at a national or federal level?
I have to say that going in, I’m rather skeptical that there’s a meaningful way to establish whether or not “most” issues “should” be addressed one way or the other way, but I’m particularly doubtful that most issues rise to a level of compelling national significance. “Most” political issues are tedious bits of minutia.
Gary,
I think I wasn’t clear. What I meant was that most issues dealt with by Congress are national in scope. Of course there are many many issues that are sensibly dealt with at the state and local level.
Since the discussion seemed to about the justification for two Senators per state I was trying to say that the notion that the smaller states needed some protection from coercion was not very convincing, because there is often no inherent state issue.
who are these people who live in unpopulated areas, anyway?
the cosmological joke-reply is “Dark People”: they’re there and they vote, but so far we can’t detect them directly.
obviously, that joke fails miserably outside of cosmology.
the cosmological joke-reply is “Dark People”: they’re there and they vote, but so far we can’t detect them directly.
obviously, that joke fails miserably outside of cosmology.
that’s why i love blogs
A similar problem of weighing votes occurs here in Japan, where an rural vote was equal to up to 5 urban votes. Eventually, a case worked its way up to the Supreme Court where the acceptable weighing was decided around 1994. Here’s a NYTimes article. from 92 about it. I can’t find a good English source for a precis of the changes in the 94 decision as most of them discuss the effect of the changes on particular policies rather than the change itself, with discussions of the system locked behind subscriptions. Frex, here’s an abstract that discusses the difference between apportionment in Japan and the US. I know Publius is discussing the Senate, and apportionment only applies to the house, but I think it is interesting to see how other nations are dealing with similar problems.
KCinDC: Jes, there are cultural differences within states too. Yes, the US is bigger, but what is the population threshold between 36 million and 300 million where suddenly it becomes necessary to make special provisions for people in less populated areas within the political entity?
That’s one of the questions you should probably be asking so you’re ready with a good answer after the revolution overthrows your present crusty old government and Congress lies fallow to be reformed.
Off the top of my head:
Speed limits.
How old you have to be to drive.
Whether, and what kind of, motor vehicles need to be registered or insured.
Whether legal minors can work, and what kind of work they can do.
Zoning laws.
Building codes and other industrial standards.
Restrictions on gun ownership.
When, and how long, the school year should be.
What the basic course of public education should include.
Rules about fair use of open land and water.
What kind of use can be made of private land, and under what conditions.
What level of public infrastructure is required, and how to fund it.
Whether, and where, you can keep livestock.
Rules about ownership of and/or right to property for marriages or other legally binding personal relationships.
Reasonable bond to be posted by folks in financially responsible positions.
Requirements for local or state office.
There is likely no useful uniform national policy for any of the above. There are lots and lots of things that are really best deferred to the states.
IMO the two-house arrangement we have now works pretty well. Republicans get away with the fillibuster stuff because, as noted above, Reid doesn’t call them on it.
It’d take two or three all-nighters to show he meant business, then they’d knock it off.
Thanks –
Back to filibusters, I think there’s a fundamental distinction to be made between filibusters of legislation, and filibusters of nominations. Congress originates legislation, and is under no obligation, constitutionally speaking, to consider any particular instance of it. And is therefore free to use any arbitrary rule it may please as to what legislation will be brought up for a vote.
But the Senate doesn’t originate nominations, and IS tasked with giving advice and consent. And the filibuster is not a vote on the merits, it’s a decision to NOT have a vote on the merits. Which I think is improper.
Really, I think we need some kind of amendment, to fix both the President’s abuse of recess appointments, and the Senate’s failure to promptly act on appointments. Both are broken.
BTW, I did have to laugh at Publius giving as an example of the horrors of Senate malaportionment a vote where the populations represented by the Senators tracked almost exactly their percentage of the Senate’s membership. Couldn’t find a better example?
Wouldn’t be more relevant to count the “votes received” totals from each Senator’s last election instead of the total population of that Senator’s state. Say a Senator who got 100,000 votes blocking legislation of one who got 1,000,000 votes.
I would think that small state senators have a disproportionate power to monkey-wrench legislation.
I can see the argument, Brett, but I agree with Publius that judicial nominations are actually the place where the filibuster makes the most sense as a practical matter. Requiring that someone up for a lifetime appointment be able to get 60 votes doesn’t seem unreasonable.
“But the Senate doesn’t originate nominations, and IS tasked with giving advice and consent. And the filibuster is not a vote on the merits, it’s a decision to NOT have a vote on the merits. Which I think is improper.”
Alternatively, it’s perfectly sensible to allow for the filibuster of lifetime judicial appointments, which are of a person, which last for decades, and which cannot be undone, save for severe cause, whereas one can argue that the need to allow for filibustering of legislation, which can be changed one year to the next, as many times as you like, if Congress reconsiders, is far lower and less obvious.
Ya pays your money, and buys whichever argument ya likes better.
Brett’s argument is about constitutionality, not whether it’s a good idea. On the issue of constitutionality, I’d say that the Senate can make its own rules for how to express its consent.
It’s good to see that no one’s trying to defend the earlier Republican position (during the “nuclear option” era) that filibustering of judicial appointments specifically was unconstitutional, even though the Constitution doesn’t distinguish between different types of appointments.
If one were really concerned about the protection of minority rights, he or she should logically be opposed to what today is called *federalism*, or the emphasis on policy-making at the state level rather than the federal level.
This was recognized by James Madison in Federalist #10 where he wrote:
“The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.”
It just seems that, at some point, something’s got to give.
“Morally, democracy is invincible. Physically, that side will win which has the better guns.”
– Vladimir Nabokov
To which I’d add defensible landmass and shared values with the sitting military leadership. See Pakistan. Controlling the food is a nice touch too.
😉
http://www-personal.umich.edu/~mejn/election/countymapredbluelarge.png
“Requiring that someone up for a lifetime appointment be able to get 60 votes doesn’t seem unreasonable.”
“I’d say that the Senate can make its own rules for how to express its consent.”
Well, sure: I’m not arguing that the Senate can’t, if it wants, require a nominee to get 60 votes on the floor to be considered approved. I’m just pointing out that a cloture vote is not a vote on whether to confirm a nominee. It’s a vote on whether to hold the vote.
Senate rules say it only takes a majority vote to confirm a nominee. They always have. If that’s going to be changed, it should be done formally, not by abuse of parliamentary rules.
Ah…that makes even more sense. Good argument.
Possibly the problem of over/underrepresentation in the Senate could be partially compensated by adding extra conditions for specific cases. This would mean that for those cases the number of senators voting for or against it would have to also represent a minimum/maximum percentage of the population. E.g. for undoubtedly national topics (like SCOTUS appointments) confirmation would require both a high majority of Senators and a minimum percentage of citizens represented.
On judicial appointments I would change the rules anyway. Recess appointees have to step down, if not confirmed by the senate immediately. They can’t set precedents. Appointees that do not get a supermajority are not for life but for a limited time (but can be “up-voted” during that term). Minimum time between renominations, and repeated failure disqualifies permanently. etc.
The Minority Party (whoever they are) rarely does, Charles: why the surprise?
How could you possibly interpret my comment as expressing surprise, Jay? The fact is that the GOP has shot down legislation by cloture 63 times in the last year, and 58 times in the prior GOP-led Senate. Senate Dems aren’t working well with Senate GOPers, and it was vice versa in the prior two-year session, and tells you that the political environment is highly polarized, mostly because of Iraq. Harry Reid keeps insisting on directing the war effort in Iraq, trying to railroad the Senate into his phased surrender plan, and the GOP is insisting that his proposals will be open to debate indefinitely. It’s only obvious that the Republicans aren’t going to sign on to his crap. Reid has been no less combative in his leadership role than the GOP was when they were in the majority.
The only issue I had with cloture was on judges, because I believe they should be put to a vote in keeping with the spirit of “advise and consent” in the Constitution. I had no complaint with other forms of filibustering, so charges of “hypocrisy” (that’s you, dm) don’t hold water for me.
Senate Dems aren’t working well with Senate GOPers
…that’s an interesting way to describe the GOP’s obstruction of legislation.
Harry Reid keeps insisting on directing the war effort in Iraq, trying to railroad the Senate into his phased surrender plan
Harry Reid doesn’t have a “phased surrender plan”. He has a plan, supported by a majority of the US, to withdraw US combat troops from Iraq.
“The idea that 41 Senators can stop any SINGLE piece of legislation from passing isn’t terribly unreasonable, for all the reasons well outlined by other commenters. I think the problem is that 41 Senators can stop ALL pieces of legislation.”
The problem isn’t so much the actual filibuster itself, as the fact that no one actually has to make a fool of himself blabbing on and on so that their opposition can use it in TV commercials later. Republicans didn’t do it to Democrats a couple of years ago, and Democrats aren’t forcing that from Republicans now.
And no whining about boo-hoo that means we have to keep the majority party overnight. Being a Senator doesn’t have to the one of the cushiest jobs in the world every single waking moment.
“I think I wasn’t clear. What I meant was that most issues dealt with by Congress are national in scope. Of course there are many many issues that are sensibly dealt with at the state and local level. “
I don’t think this helps your case. Congress deals with thousands of purely local issues and then omnibuses it into large packages. That is how pork projects get their money. We certainly don’t need Congress setting milk policy, or sugar policy, or wheat policy. (Arguably we don’t need ANYONE setting those policies, but if it desperately needs regulating, it isn’t at all obvious that California and Wisconsin need similar milk policies).
I don’t think this helps your case. Congress deals with thousands of purely local issues and then omnibuses it into large packages. That is how pork projects get their money. We certainly don’t need Congress setting milk policy, or sugar policy, or wheat policy. (Arguably we don’t need ANYONE setting those policies, but if it desperately needs regulating, it isn’t at all obvious that California and Wisconsin need similar milk policies).
But these aren’t the issues that are vital to the future of the country.
Of course they are important to specific localities, and some deference is now paid to Senators on matters that largely affect only their own states. But I don’t see why a more representative Senate would not also pay such deference. Doesn’t this happen in the House as well?
And if milk policy in Wisconsin doesn’t affect Californians why will they care, and if it does why shouldn’t they have a say?
the political environment is highly polarized, mostly because of Iraq
Riiiiiiiight. Because the political environment under Clinton was all peaches and puppy-dogs. I see that Henry “Ruuuuuulllle of Laaaaaaaaaw!!!eleven!!” Hyde has died. I’m sure he’ll get his just des[s]erts.
Jeff, am I reading you right? Criticism of Henry Hyde’s actions in life is one thing, but speculation about the fate of his eternal soul is pretty damn tacky.
And that applies whether you believe in an eternal soul or, like me, you do not.
“But these aren’t the issues that are vital to the future of the country.”
And yet Congress rules on them anyway. What implications does that have for your argument?
“And if milk policy in Wisconsin doesn’t affect Californians why will they care, and if it does why shouldn’t they have a say?”
It does effect Californians, and it *shouldn’t be dealt with by Congress*.
Also we should note that every single thing complained about regarding Senators has also passed through the House of Representatives.
“Also we should note that every single thing complained about regarding Senators has also passed through the House of Representatives.”
Except, of course, for nominations.
Also we should note that every single thing complained about regarding Senators has also passed through the House of Representatives.
Not true.
Legislation that fails in the Senate may not have passed the House. And so what if it has? There is nothing that says a complaint is legitimate only if it deals with things that pass, but not if it deals with those that fail.
In addition, of course, the House has nothing to do with confirming Presidential appointments.
As for milk, if you are talking about economic rather than health and safety matters, I agree.
“It does effect Californians, and it *shouldn’t be dealt with by Congress*.”
No, it affects them, like Bernard said.
It’s not possible to “effect” Californians. We can only affect them. Which would then have an effect on them all.
Sorry. Generally, an “effect” is had, and “affect” is a verb, except when it’s not, which is why people confusedly misuse it so often.
Probably no one is interested. Sorry again.
This is probably the kind of comment that annoys OCSteve and other folks, although my only interest is to inform.
My own desire is that whenever I embarass myself by making a usage error is that someone informs me so as to prevent embarassing myself again.
But mileage varies on that.
Crap. Violated my resolution to not write about usage here.
I apologize. Bad impulse control, drat it.
Actually, it is possible to effect Californians. Couples living in California do it all the time. Whether milk policy can do it is another matter.
Oh, and about six hours ago, I tried to post this a number of times, and couldn’t get Typepad to quit calling me a spammer, and dropped it in a file, until I just recalled:
“Harry Reid keeps insisting on directing the war effort in Iraq, trying to railroad the Senate into his phased surrender plan,”
Setting aside that the discussion is about the filibuster, and out of 63 cloture votes, only a handful had to due with Iraq, making this point pretty much irrelevant to the larger discussion, I’m curious: who, precisely, is Reid trying to surrender to, Charles? Is it your claim that if U.S. troops were to withdraw in the very near future, that Al Qaeda in Mesopotamia will triumphantly take command of the government of Iraq?
If not, then to whom is Reid “surrendering”?
Stop being a loser-defeatist, Gary.
This has bothered me for some time, too. Is there an applicable definition of surrender that doesn’t involve allowing the enemy to disarm and take custody of our soldiers?
What especially irks me about this language is that there are plenty of perfectly good pejoratives for withdrawing from a conflict. “Surrender” just plain doesn’t describe the move at all.
I hate to have to say it, but “surrender” isn’t a complex term.
Generally speaking, people know when it’s done, versus when it’s rhetoric.
Which is why I ask.
I’m depressed, not stupid.
I trust Charles is better.
The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests
Here’s a funny thing.
I grew up in the NYC metro area, and have lived all my life near large northeastern cities. My experience is exactly the opposite of this.
The closer to downtown, the more various the mix. The greater the geographic spread, the more homogeneous it gets.
Controlling the food is a nice touch too.
Not that tired old crap again.
Look man, the blue states have all the fresh water. Game, set, and match.
Plus, I could probably live on what grows within 100 miles of Boston, year round. I like root vegetables.
Harry Reid keeps insisting on directing the war effort in Iraq
Wrong. Harry Reid, to the degree that he’s done anything at all on the issue, has attempted to place conditions on the funding of the war effort. That’s quite a bit more limited in scope than “directing the war effort”, and is, in fact, within the scope of his office.
I’ll ignore the “surrender” BS. When you surrender, the other guy tells you what to do. When and if we leave Iraq, we just come home.
The problem isn’t so much the actual filibuster itself, as the fact that no one actually has to make a fool of himself blabbing on and on so that their opposition can use it in TV commercials later.
Right on the money. Nobody has the stones to call the bluff, so the mere threat is sufficient to bring things to a halt.
When throwing the monkey wrench costs so little, how can you blame anyone for doing it?
every single thing complained about regarding Senators has also passed through the House of Representatives.
Strictly speaking, only those things that involve spending money.
What was this thread about originally? Oh yeah…
Having lived through the administrations of Richard Nixon, Ronald Reagan, and both Bushes, I’m really happy to have an institution like the Senate in place. Senators don’t have to run for office every two years, can drive legislation into a black hole with the fillibuster, and can otherwise put the brakes on very very popular, very very bad ideas without worrying quite as much as House reps about having their chains yanked by the folks at home.
It is, in fact, kind of elitist, and anti-democratic. It’s also a useful counterbalance to the somewhat fickle nature of the popular will. It slows things down a bit.
Sometimes that’s not great. Sometimes it saves our bacon.
Thanks –
Actually, Russell, I think he meant *smaller* in terms of number of individuals – hence the reference to “a smaller number of individuals composing a majority”.
And of course as you move EVEN FURTHER from downtown, as in to the rest of the states, as well as other states, you get the largest variety of “parties and interests”.
Actually, Russell, I think he meant *smaller* in terms of number of individuals
Yes, I understood that.
If you look at the ~10 million folks who live in metro NYC, you will more likely find a relatively more heterogeneous blend of points of view, and less likely find one perspective dominating the others, than if you look at the ~300 million people who live in the whole US.
That’s all I’m saying.
Thanks –