I hope it is evident from reason and authority, that in the constitution of the senate there is much cunning and little wisdom; that we have much to fear from it, and little to hope, and then it must necessarily produce a baneful aristocracy, by which the democratic rights of the people will be overwhelmed.
- Anti-Federalist #64
It's encouraging to see the recent attention to the filibuster, and a possibly growing liberal consensus that the filibuster is generally a bad thing, and should be curtailed or eliminated. I'm going to continue a very old series of mine, "Unstacking the Deck" which began with my very first front page post at Open Left, to discuss the broken institutional balance of the US government. The filibuster is certainly a big factor in that, but it's worth going into some detail of the underlying power disparity which the filibuster only exacerbates.
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| In May, Chris touched on this problem, writing that America Has a Unicameral Legislature. In it, Chris argues that it is almost always the Senate that effectively decides whether bills become law and the House's opinion doesn't seem to matter very much. This is a big problem, and stems from the unusual American legislative model, whereby the Upper chamber is actually substantially more powerful than the Lower one, which is rare among comparable wealthy and stable democracies. In Canada, the UK, France, Germany, Japan and Australia, the Upper chambers of these nations legislatures in most cases have a (sometimes severely) limited ability to block the will of the Lower house. Sometimes this is formally legal (the UK) and sometimes it is just normative (like Canada) but it always clearly the lower houses that lead these nations' legislative processes. This difference has some obvious effects on American democracy worth examining.
Why say the two chambers are not equal? The idea was supposed to be that since both houses have to pass each bill in identical form in order for it to become law, that balance of vetoes ensures broad parity in power and authority between them. This is a kind of symbolic symmetry that has the appearance, but not the actuality of equality. To requote Anatole France:
The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.
The two parties have equivalent instruments of veto, yes, but one party is so much more apt to use theirs, and has more to gain (or protect) by using it. Sure, the House can veto legislation just like rich people can sleep under bridges, but do they actually want to? No, and the reason has to do with the role of government in a liberal democracy as the great force of equalization. The relationship of money and power means that those with money have the power to pursue their aims without outside assistance. Those without, do not (in fact they need protection even from being abused by the powerful). The House, as the more liberal institution will be more apt to seek to pursue populist aims. The Senate will be more apt to stymie those. In a choice between an activist government that helps the downtrodden and a do-nothing government, the wealthy would always prefer the latter, which is what the Senate provides for them.
There are exceptions where liberals garner benefit from the Senate's ingrained unwillingness to act. This, however is not a strong reason to keep it around (in its present form at least). Most other democracies have effectively unicameral legislatures with power heavily concentrated in the lower House. Universal health care survived strong C/conservative majority governments in the UK (Thatcher) and Canada (Mulroney) without these governments exercising their legislatively unfettered power to repeal the programs. The prospect of angry voters proves a better check than the filibuster. In the US, George Bush's grand plan to kill social security didn't even come to a vote in either Chamber, so again it would be dubious to credit the Senate with saving SS from privatization. On the flip side, the Senate didn't stop Alito or Roberts, didn't even slow down the Patriot act (for all the praise of Feingold's lone vote against it in the Senate, one never sees mentioned that in the House there were 66 votes against it), nor federalizing Terry Schiavo's case. Even as a speed bump on conservative overreach, it regularly fails.
Additionally, a far better check on unfettered majority rule in America is the constitutionally entrenched Bill of Rights, enforceable by the Courts. While their record is not without blemish on that front, it is a far better one than boasted by the Senate. The Bill of Rights is a minority protection mechanism that protects all minorities equally whereas the Senate's mechanism requires a minority that is able to elect 41+ Senators in plurality-wins elections. There's really only 1 minority that can ever do that: Rural white conservatives.
The basic design of bicameralism in the US combined with the undemocratic manner in which Senators are apportioned, the unrepresentative way in which they are elected and their three times longer terms of office already creates a situation where the Senate becomes the more important chamber by virtue of being the one that is more difficult to motivate to act. If you think about choosing not to act is "policy" just as much as choosing any particular action, then you have a situation where merely by stopping legislation, the Senate is affirmatively directing the course of the US government far more often than the House. Curtailing the filibuster would largely correct this problem, though of course Senators would still be on average more conservative so it wouldn't eliminate the problem entirely.
Part II (published tomorrow), will look at the powers specific to each chamber, where the real balance of power between the chambers looks even worse. |
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