The Senate Is Not Too Slow

by Will Wilkinson on December 29, 2009

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.

  • Point
    I think you're skipping over a couple of key points that both Ezra and Matt have been making:

    1) The sheer frequency of fillibuster use has been unprecedented, and the increase is hardly only due to the HCR.
    2) The pace of government is not only affecting the timed passage of historic legislation, but also, for lack of a better term, government functions -- for example, 19 of Obama's 32 (essentially non-controversial) judicial nominations are awaiting confirmation, as are a number of executive positions, like TSA Administrator*.
    3) The pretty much stated purpose of the minority's obfuscation is not to horse trade, but to slow down the overall legislative process as much as possible, so as to do everything to hinder the Administration's agenda.
    4) A number of senators agree that the Senate is essentially "broken".

    In short, a key part of the point being refuted is that the problems facing the Senate are new (or new-ish); if accurate, it could hardly be described as a "frustration with the very idea of a legislature".

    *What do you want to bet not having an appointed Admn. contributed to the recent TSA manual fiasco?
  • James K
    1) Is only a problem if you view the filibuster is a bad thing.

    2) and 3) are only problems if you view the purpose of the Senate to enact the Administration's agenda.

    4) How many of these senators are the ones whose own agenda is being frustrated? Its easy to criticise the system when it won't give you what you want?

    Having said that, the filibuster does seem a bit hacky to me. Why not eliminate it and simply require a 3/5 supermajority to pass a bill?
  • Point
    "2) and 3) are only problems if you view the purpose of the Senate to enact the Administration's agenda"

    Or just a functioning government. Keeping executive offices empty and refusing to horse trade don't just stop a party from passing an agenda, it stops anyone from governing at all.
  • luke
    there are already checks and balances and mechanisms to slow or kill legislation built into the system by the founding fathers. a bill must pass the house then the senate then reconciled and voted anew in both houses which can then be signed or vetoed by the president. filibusters are undemocratic.
  • Tom G
    I found this post odd. I think the primary concern with the filibuster is not delay but negation - not that it took too long to pass the health care bill, but that it took 60 votes in the Senate, a majority in the House and the presidency. Those who imagine that without the filibuster there would be too little legislative friction, seem to forget the need for majorities in both houses + the presidency.

    Will's comment about a "temporary" majority also seems off. The Democrats are likely to hold a majority in both houses for at least four years. Only if majority is defined as 60 votes in the Senate is the term temporary reasonable. Under that definition, a majority has been rare historically.

    Tom
  • Peter
    It is logical inside a system that requires 67 to overturn a veto. It would not make sense to require a number greater than 67 in that system ever.
  • Ryan
    I think the more compelling point re: the filibuster - made most often by Yglesias - is why 60? Why not 62? Or 57? Or 19*pi? You can at least establish a principle that makes 50 make sense, but 60 can never really be anything other than arbitrary.

    Maybe arbitrary is okay, but then you need to defend the proposition that we should go with what we have for the sole reason that it's what we have. I don't see how you construct a liberal or libertarian argument for that.
  • y81
    That does sound like the sort of think Yglesias would find compelling, but most of us have more perspective than an Ivy League undergraduate.

    It takes two-thirds of the Congress to override a veto. It takes two-thirds of the Senate to approve a treaty. It takes three-quarters of the states to approve a Constitutional amendment. It takes four of the nine Supreme Court justices to grant certiorari. It takes two of five dissenting judges at the appellate division to establish an as of right appeal to the New York court of appeals. There are all sorts of non-majoritarian rules in our constitutional system, and each of them involves an arbitrary cut-off, but that only counts as an argument if you reject countermajoritarianism ab initio. This is actually a very precise example of what is called "begging the question."
  • DMonteith
    This is actually a very precise example of what is called "begging the question."

    Well, since Yglesias has written extensively about this it's not too hard to figure out that his objections to countermajoritarianism as practiced in the modern Senate consist of more than just "60 is an arbitrary number". I'm not aware of any fancy latin term for failing to do your homework, but I'd bet that even an Ivy League undergraduate could tell you that it's not a winning rhetorical strategy.
  • y81
    Perhaps I was unclear: it is Ryan who is "begging the question." I haven't read Yglesias on this issue. In general, though, I consider him a lightweight.
  • DMonteith
    When Ryan says "the more compelling point", does he imply the existence of other points that, if you bothered to familiarize yourself with them, might obviate your concerns about question begging? When you decry the limited perspective of Yglesias, are you, in fact, talking out of your ass because you are ignorant of what his actual perspective on this matter is? Is the idea that anyone engaged in this debate is "rejecting countermajoritarianism ab initio" something you just made up? Regardless of other ambiguities in your commentary, the answers to these more important questions are quite clear, so good work.

    It couldn't hurt to take on a little ballast yourself, by the way. Just saying.
  • SRdV
    The number required is 3/5 of the full Senate. Similarly, overturning a veto takes 2/3 of the full Senate.

    IIRC those numbers were picked by the Founding Fathers to make it harder to create a tyranny of the majority.
  • This is false. The current filibuster rules date to 1975. Before that it was a 2/3 requirement, and before that (in the early 20th century) a single Senator could filibuster legislation. Filibusters and cloture votes are part of our de facto constitution, but they're not in the written Constitution.
  • Actually, the rules now depend on which party is in the majority.
  • How does that contradict what I said? The same party is in the majority now as in 1975.
  • Peter
    Because humans use a base ten counting system. Also, in majority voting with 10 people 6 is necessary. 59 would make sense also because it is halfway between 51 needed for simple majority and 67 needed to override a veto. Humans have a tendency to round things to even numbers unless we are trying to sell something. Not all that arbitrary pretty normal human behavior.
  • Ryan
    So if we use a base 10 counting system, why not 70? What makes 60 special other than "it's what we have"? That is, if you were devising a system from the ground up, you're honestly telling me you'd pick 60?
  • Peter
    It is logical inside a system that requires 67 to overturn a veto. It would not make sense to require a number greater than 67 in that system ever.
  • hirednews
    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.

    What if your ideology holds that no new laws, good or bad or indifferent, should be passed at all?

    That's my ideology, and I'd say it's different from that of the Republocrats, who differ only stylistically on questions about how they want government-controlled health care and the debtorship society and the permanent security state to look and feel.

    But it is an ideology, and I am an ideologue (idiolog?). So I'm not sure it's true that the more ideological you are the more quickly you want to see things passed.
  • Peter
    I am not sure about Ezra but Yglesias has always opposed it. I don't understand how anyone could think the filibuster is a bad idea. Jay Cost has a recent post that is dead on. If it required only a simple majority to pass legislation we would have private social security accounts which the dems would be repealing right now and the current healthcare proposal would be overturned as soon as the repubs gained control again.
  • Lots of good points.

    I wonder, did Ezra hate the filibuster this much when there was a Republican majority?
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