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Legal Commentary

: Prawfs

Fix the Senate, Part II

By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel

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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."

Full post as published by Prawfs on December 13, 2009 (boomark / email).

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