The Senate Is Not Too Slow

Here’s Ezra Klein, complaining again about the Senate:

Most of the GOP’s filibusters are fruitless. According to PFAW, “a full 89% of the time, the cloture vote did nothing but delay the inevitable — a huge increase from the previous high of 56%.” And in a majority of those cases, cloture was passed with more than 65 votes — that is to say, the vote was bipartisan. In one case — a bill extending unemployment insurance — the final vote was 97-0.The filibuster isn’t being used to block a particular issue but to obstruct the legislative process in general. It is, increasingly, a filibuster against a functioning government, not against polarizing pieces of legislation.

I keep reading these kinds of complaints, and I can’t seem to avoid the sense that they boil down to some kind of frustration with the very idea of a legislature. I know Ezra is no political naif, so it’s annoying when he acts like one. It’s just silly to say that a slow legislative process is a “filibuster against a functioning government.” Filibuster attempts notwithstanding, the government seems to be functioning about as well as usual–for what that’s worth. Ezra makes it out that a moderate pace in passing laws and approving executive nominees to the bureaucracy and bench serves no substantive function. But the ability of a minority to affect the pace of a session forces the majority to focus on its priorities and keep contentious but not-so-important issues off the floor. This blocks any number number of “particular issues.”

Why would a senator stall the process? Because he or she wants something, of course. Most of the procedural convolutions in the Senate are pretty clearly logrolling and vote-trading opportunities. It is the sum of these exchanges, not mere head-counting, that ensure that the various interests represented by the legislators have been taken into account. And this rough balancing of conflicting interests and convictions, not mere head-counting, establishes whatever democratic legitimacy legislation might have.

There’s nothing superspecial about majoritarian voting rules. Counting heads and then skipping merrily and speedily along is an endearingly simple idea, but it’s not very useful. Head-counting can tell you how many voters prefer A to B, but it can’t tell you anything about the intensity of their preferences. If 51 percent mildly prefer A and 49 percent passionately prefer B, there is a pretty clear sense in which A is the “wrong” democratic choice, even though it is in a trivial sense more popular. Vote-trading, logrolling, etc. enable the overall process to balance interests and convictions over time in a way that takes into account the intensity of preferences. If the Senate is in fact a great deliberative body, its abundance of opportunities for political bargaining helps explain why.

The more ideological you are, the less satisfactory this will seem. The ideologue insists that her intensely favored conception of justice demands or forbids certain policies no matter the complexion of public opinion or democratic procedural ideals. She insists that certain odious preferences and ridiculous beliefs must not to be taken into account at all, or only at a steep discount. Having no sincere interest in the deliberative and balancing aspects of democracy, then, the ideologue tends to confuse democracy with majoritarian head-counting. When you see democracy this way, it looks just hopeless to those with marginal views (like libertarians). But to those with more mainstream views, it looks a like a game their ideological team can win. If a legislative majority that (you think) shares your preferences comes to power, you will tend feel that your team has won, and that winning amounts to a license to make law and otherwise govern in a way that embodies the teams’ preferences. Rules that enable members of the minority team (or half-hearted members of the majority team) to extract concessions will seem to miss the point of democracy: the team that wins gets to govern as it likes.

Now, I don’t love the design of the U.S.’s institutions of collective choice. And I think it is desirable to speed up the appointee approval process. More importantly, there’s a lot on the table of legislative negotiation that just shouldn’t be bargained over. That is, I favor more limited government: the scope of legislative discretion should be much narrower than it is. But whatever the many flaws of the U.S. Senate, a lack of haste is not among them.

The health-care system is, to my mind, part of a country’s basic structure of institutions–part of its de facto constitution. Liberals and progressives who see the initiatives of the New Deal and Great Society as having established a “Second Bill of Rights” seem to agree with me about this. But they seem not to agree that dramatic changes in the de facto constitution deserve special consideration. Indeed, to the extent liberals and progressive think the healthcare debate in Congress has gone on too long, they seem not to agree that these changes deserve much consideration at all. They seem interested primarily in how a temporary majority can do more, faster, now.