Richard Posner on the Bizarre Senate
Class Photo of 110th Senate (official photo)
I hope Richard Posner doesn’t mind that I’m linking to something he wrote without permission, but I think this post on what a bizarre institution the Senate is is very good:
Since the Senate is very large and Senators are directly elected, it is unclear why there is a Senate–that is, why the federal legislature is bicameral. Bicameralism increases the transaction costs of enacting legislation, which can be good or bad (it is bad in national emergencies, as in the financial crisis of last September), and it also increases the cost of repeal, which on balance probably is bad, arbitrarily enhances the political power of sparsely populated states, results in many unprincipled and confusing legislative compromises, and diffuses responsibility for legislation. It is not clear that on balance we are better off with the bicameral system.
The filibuster is an incomprehensible device of government. A supermajority rule, whether it is the rule of unanimity in criminal jury trials or the supermajority rules for amending the Constitution, makes sense when the cost of a false positive (convicting an innocent person, or making an unsound amendment to the Constitution) substantially exceeds the cost of a false negative. But it is hard to see the applicability of that principle to Senate voting, given the other barriers to enacting legislation.
One’s anti-Senate sentiments should only be bolstered by the fact that the historical origins of the Senate are perfectly clear. In particular, the arbitrary enhancement of the political power of low-population states was undertaken as part of a non-mysterious raw political compromise. But that was hundreds of years ago, and in the intervening time the gap in relative populations between states has grown much larger.
On the filibuster, Posner gets at the crucial point. Even without a supermajority rule in the Senate, the United States would still feature many more veto points at which legislation can be blocked (you need concurrent majorities in two legislative houses, plus at least two committees, plus the assent of the president) than most advanced democracies. There’s no systematic reason to think that this feature of our system is conducive to the public interest over the long term.
42 Responses to “Richard Posner on the Bizarre Senate”
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July 6th, 2009 at 1:03 pm
Linking without permission? Uh oh, you better check his Facebook page in case there is a sternly worded posting.
July 6th, 2009 at 1:04 pm
Shorter Yglesias….Wah, the Senate won’t do what I want them to. Waaaaahhhh.
July 6th, 2009 at 1:10 pm
Suppose the Constitution was amended to make Congress unicameral. Would we simply drop one chamber in favor of the other? Split the difference between them? Combine them? Split the difference between the combination and some lower number?
July 6th, 2009 at 1:10 pm
If you asked me, the filibuster is more of an excuse than a true veto point. We saw during the reign of Bush II that the Senate is happy to pass things 51-49 if they really feel like it. It was only when items came up that potentially hurt big money interests that we started hearing about this 60-vote threshold.
July 6th, 2009 at 1:11 pm
Poor Shooter, complex arguments are too much for his tiny brain. Shorter Shooter – I don’t get it so I’ll post what I got from it.
July 6th, 2009 at 1:17 pm
IIRC, the Senate was originally designed to keep democratic majorities from running roughshod over rich or even plutocratic overlords. Seems to be working
July 6th, 2009 at 1:18 pm
There’s no systematic reason to think that this feature of our system is conducive to the public interest over the long term.
At some point in the future the democrats will, like any political party, run this country into the ground and so be cast out of power. The filibuster prevents the new republican majority from undoing all the democrats accomplishment.
July 6th, 2009 at 1:18 pm
I’m not necessarily going to defend the filibuster here, but I will bring back a defense of the US Senate:
1. It is better that congress should have a greatly deliberative body as one of its parts than for it to be completely representative.
For me, prior to democracy as a good, there is the respect of others as human beings like yourself. That is to say that it is only because I understand my fellow man as an end in himself, not as a means, that I can even consider letting those who disagree with me, even if he is part of a majority, from governing me.
From this, we can say that there are other values that can potentially override democracy in creating institutions for a just government — one of which, I would argue, is the value of discussion, whereby no policy is made without all interested parties saying their peace, and where those that govern are forced to make at least some justification to their detractors. Which is to say that before a just society is democratic, it is open and deliberative.
And I, for one, am proud* to live in a country that boasts the world’s most deliberative body.
Yes, this loquacious body has been an obstruction to routine legislation and progressive change alike; the flip side of institutionalized consultation is that
transformation, whether it is for good or ill, must be done either by degree or with the wide consent of the nation.^
* on the whole
^ I should also note brief that this post is not a blanket defense of Senate procedure, and certainly not of every instance of its power of restraint.
2. The Senate cannot become representative in any meaningful way without damaging its deliberative capacity.
There are a number of aspects of the upper body that lend it to its style (such as longer, disjointed terms), but the Senate rules certainly top the list; and one thing that makes those rules even feasible is the Senate’s relatively small size (less than a quarter the size of the House).
If every state is represented in the Senate, that leaves 50 votes to distribute according to population — when California is 69 times the size of Wyoming!
Thus, in practice, representation of all 50 states by population is incompatible with its deliberative nature.
July 6th, 2009 at 1:23 pm
The reason we have a Senate at all is that it had to be there to get smaller states to ratify the original U.S. Constitution. (without a Senate to equalize them, the small states correctly figured they’d be regularly outvoted in a demographically accurate representative assembly.)
As an avid anti-states-rights person, I’d be happy to dump the fracking Senate completely. State size is an arbitrary phenomenon that doesn’t deserve to be privileged by creating an assembly where small state residents have many times the representation of large state residents. Also if we got rid of senators we might have a chance to eliminate the electoral college, another anachronistic monstrosity.
July 6th, 2009 at 1:27 pm
“In particular, the arbitrary enhancement of the political power of low-population states was undertaken as part of a non-mysterious raw political compromise. But that was hundreds of years ago, and in the intervening time the gap in relative populations between states has grown much larger.”
I agree with this entirely. However, it’s very important to note that reforming this will be very, very difficult and could take decades to achieve, if it’s even possible.
However, getting the Senate to vote by majority rule is easy. It could be done tomorrow.
In short:
- Undoing the Delaware compromise is pie in the sky.
- Passing bills with a majority vote is low hanging fruit.
July 6th, 2009 at 1:28 pm
Getting rid of the fillibuster isn’t impossible, so bitching about that might serve some purpose. Complaining about the Senate itself, however, is just wankery.
Mike
July 6th, 2009 at 1:29 pm
“There’s no systematic reason to think that this feature of our system is conducive to the public interest over the long term.”
Yes, if we completely ignore how it’s served the public interest for over 200 FRICKIN’ YEARS.
Mike
July 6th, 2009 at 1:30 pm
I must admit that I was very happy to have the Senate and the filibuster for the years 2001 through the end of 2006. Admittedly, at least the Bush tax cuts did not become permanent and some of the worst reactionaries did not get lifetime appointments to the Federal bench.
July 6th, 2009 at 1:32 pm
Yes, if we completely ignore how it’s served the public interest for over 200 FRICKIN’ YEARS.
Okay, how?
July 6th, 2009 at 1:38 pm
Admittedly, at least the Bush tax cuts did not become permanent and some of the worst reactionaries did not get lifetime appointments to the Federal bench.
Er, not really. At best, it resulted in blocking a total of two, and I’m not sure that Pickering was as reactionary as other Bush appointees, even if he was a racist.
But hey, we’ve got Sam Alito on the Court instead of Miguel Estrada. So, yay?
July 6th, 2009 at 1:39 pm
If we made them filibuster for real, like in Mr. Smith Goes to Washington the threat would be an empty one.
Look how long John Boehner was able to read the climate bill for before he needed a smoke. MAKE THEM TALK NONSTOP.
July 6th, 2009 at 1:46 pm
It’s worth pointing out that it takes only 67 votes for the Senate to amend the Constitution.
Sorry, but I think it’s insane that it should take only a handful more votes to change our fundamental governing document than it takes to pass a plain old law. It also, frankly, turns all laws into something just short of a Constitutional Amendment, because it takes 60 votes to break the filibuster and get RID of that law.
It’s insane. We must get rid of it. Regular laws should not be nearly amendment-strength.
July 6th, 2009 at 1:48 pm
1:46 was me. Idiotically, I forgot that whole “3/4 of the nation has to approve it” But I kind of stand by my point. It’s too hard to make or repeal a law these days.
July 6th, 2009 at 1:49 pm
I don’t particularly like the Senate either. But there is really nothing we can do about it. It is the one unamendable feature of the entire Constitution (check out article V).
July 6th, 2009 at 2:07 pm
Turns out Matt, in the next post, made a not-completely-different point about the source of legitimacy:
“Legitimacy is better thought of as deriving from substantive criteria—legitimate regimes govern with a decent respect for human rights and political freedoms and afford people a reasonable chance to change policies from within the system.”
Broadly speaking, this sounds about right; I would say that the only real way to meet all three criteria is to have an open dialogue as the source of the nation’s policies.
July 6th, 2009 at 2:07 pm
Who does Posner get permission from before he writes? Becker? seems like he’d be pretty lenient, being a Chicago school economist and all.
July 6th, 2009 at 2:08 pm
It is doubly frustrating. Its representation favors an irrelevant geographic minority. Its archaic rules exacerbates the problem by giving this minority veto power.
That said, I doubt the Senate is going anywhere anytime soon.
Maybe it would be wise to start pushing for rule changes that make it easier for the Senate to get legislation passed. For example, they almost removed the filibuster during the Bush years. Perhaps it is best that if such a standoff occurs again, we favor getting rid of the thing regardless of the short term costs.
The house has liberalized many of their rules over the years. Why not the Senate?
July 6th, 2009 at 2:13 pm
Cap and Gown: Technically it’s not unamendable, (after all we amended it with the 17th amendment) it just requires the consent of each state effected to change the equal representation of states formula (which presumably includes abolition, although that’s debatable). But even with that restriction, you could probably weaken the Senate to make it more like upper houses in other countries, so that the House can pass legislation even if the Senate opposes it.
Although it would still be really very hard to get 3/4 of the states to agree to that.
July 6th, 2009 at 2:15 pm
Re Mr. Smith Goes to Washington: It doesn’t work that way. Trying to hold debate open would be a lot harder on the majority than on the minority. (I think that in the House, the minority leader is the only person who can pull that kind of shtick.)
Anyway, I think Petey and MBunge are right; getting rid of the filibuster might be possible, complaining about the Senate is useful only as a 200-year strategy of moving the Overton window, if that.
July 6th, 2009 at 2:16 pm
Point: The status quo as it currently exists really isn’t an “open dialogue.” That’s a good goal and I have a warm place in my heart for the ideals of consensus democracy, but what we have really isn’t that. It’s a system which encourages a sufficiently sized minority (as long as that minority favors the status quo) to just plug its ears and actively refuse to listen to debate.
July 6th, 2009 at 2:19 pm
I wouldn’t necessarily defend the Senate, as it is; the current filibuster rule, in particular, strikes me as unconstitutional — I don’t see how a Senate rule can require a super-majority for passage, where the Constitution requires a simple majority.
That said, I would argue, in general, that the complexity of the rules of a political institution like a legislature do have useful functions in preserving democratic government.
A legislature, with very simple rules and procedures, might be easy to “game” decisively — a persistent majority could emerge with the discovery of some simple, repeatable strategy, and be impossible to dislodge.
An extremely complex set of rules, and the ability to change the rules (but not simplify them much), keeps the game going, by preventing the emergence of a persistent “majority” in possession of reliable and dominant strategy.
Bi-cameralism, with the two bodies chosen in different ways, in particular, may be a design feature that promotes and preserves that kind of useful complexity.
July 6th, 2009 at 2:21 pm
I agree that the filibuster makes little sense, but I think there is a quality-control argument for a two-house legislature. Errors and other problems with bills are more likely to be caught if a bill has to pass through two houses instead of just one.
As an example of this, Nebraska’s infamous child-abandonment law was apparently intended to apply only to newborns but no one caught the error in language while the bill was going through the process, and the law ended up applying to all minors. If the bill had been required to pass through two houses (as would have been the case in the other 49 states) there would have been more chances for someone to catch the error. (Can any Nebraskans or others who follow this issue correct this if it’s wrong?)
July 6th, 2009 at 2:38 pm
Both the increase in transactional costs for laws and the increase in the power of low population states seem to me to have been intentional … the first because of a fear of run away legislatures and the second to get enough small states to sign on to the original document. I think that the later is a bit perverse now … don’t see an implimentable alternative.
BTW I don’t know about you but I remember several occasions in the last 8 years when the house passed bills I considered garbage that failed in the Senate … if it was a good thing under the last administration then it is a good thing under this one too.
July 6th, 2009 at 2:45 pm
I would prefer repeal of the 17th amendment to abolition and recourse to acting at the level of states, either individually or collectively by interstate compact, to warring viciously at the federal level. A chamber of delegations apportioned, much as the German Federal Council (Bundesrat) is, according to broad population bands, such that small states such as Vermont would have 2 Senators and so monstrous a state as California would have perhaps 10 Senators, appointed mostly by the legislatures and partly by the governors, to cast votes en bloc would be even better, but it, and all else, is a wild pipe dream.
I would be nice to restrain the filibuster. I don’t mind having a house of legislature that relies upon a supermajority, but I think that it would be better fit to the House of Representatives.
July 6th, 2009 at 2:48 pm
In particular, the arbitrary enhancement of the political power of low-population states was undertaken as part of a non-mysterious raw political compromise. But that was hundreds of years ago, and in the intervening time the gap in relative populations between states has grown much larger.
You do realize that fact actually shows why the Senate’s structure is even more important today, right?
July 6th, 2009 at 3:11 pm
Anything can be changed if you spend enough time laying the groundwork for it.
At one time, most of you Ancestors painted themselves blue and howled at the moon. Two dozen generations ago, they were toiling as slaves under fuedalism. 500 years ago, slavery seemed the natural order of humanity. 150 years ago it seemed like it would be part of America forever. 100 years ago, most people couldn’t even vote.
If you think abolishing the Senate is ‘impossible’, then you’re just a fool who lacks any real sense of perspective. Develop some kind of comprehension of the scale of human events.
July 6th, 2009 at 3:12 pm
Anon, 25:
The part of the status quo that would make it that way would be the filibuster, wouldn’t it?
Points 26, 27, and second paragraph of 28:
Seems to illustrate the practical good that comes of emphasizing deliberation in democracy.
July 6th, 2009 at 3:33 pm
If it weren’t for the Senate densely populated eastern states would simply write laws to transfer all their waste (nuclear, chemical and otherwise) into poor less populated (and thereby less powerful) states.
It’s a way to avoid the tyranny of the masses.
July 6th, 2009 at 4:27 pm
“If we made them filibuster for real, like in Mr. Smith Goes to Washington the threat would be an empty one.”
Bingo. The problem isn’t the filibuster, it’s fear of the filibuster.
The Republicans want to threaten a filibuster over everything? Fine. Give them no ground on some small issue, then go on national TV and point out that they are holding up the business of the Senate over a triviality. Keep doing that until they stop.
That or remember that you now have a 60 vote supermajority.
July 6th, 2009 at 5:02 pm
Even though it may seem anachronistic to us, the Senate represents the states whereas the House represents the People. Personally, I’d rather see a unicameral legislature which chooses a prime minister from its membership, but then, I’m not really afraid of democracy as were so many of our early founding fathers.
July 6th, 2009 at 5:30 pm
If it weren’t for the Senate densely populated eastern states would simply write laws to transfer all their waste (nuclear, chemical and otherwise) into poor less populated (and thereby less powerful) states.
You say this as if it were a bad thing.
Seriously, what the Senate gives us instead is the rural states voting themselves massive farm subsidies that arbitrarily transfer wealth and keep alive absurdities like corn ethanol.
July 6th, 2009 at 5:40 pm
I disagree. The filibuster serves no underlying positive purpose it is true. But your analysis ignores the realities of partisanship, and that when one party controls congress and the white house, the filibuster is all that stands in the way of largely unchecked power. The filibuster is good except when it isn’t. When it blocks healthcare it is bad. When it blocks social security privatization it is good. You blame an effect of the problem rather than its cause: he problem isn’t the filibuster, the problem is the senators.
July 6th, 2009 at 8:08 pm
Now that the states with lots of people have snookered the small states into joining the Union, the big states can now back out of the deal and declare that the senate puts an undue strain on their agenda at the Federal level?
July 6th, 2009 at 8:21 pm
the senate existed as a check on federal power…as elected by the state assemblies, the senators were unlikely to vote so as to strip their electorate of an inordinate amount of their power…those who did so were unlikely to maek the return trip to washington.
The passage fo the 17th amendment, stripping the states of the authority to elect their senators as they saw fit was the death knell of federalism and the inevitable great growth in federal government
HTFH
July 6th, 2009 at 8:53 pm
The whole the Senate was needed to get the small states to agree to the Constitution idea is a myth, for the obvious reason that there was no need for the small states to agree to the Constitution. If it came down to it, a United States composed just of Massachusetts, New York, Pennsylvania, Maryland, Virginia, and the Carolinas would have worked fine. As things happened, Rhode Island didn’t ratify the Constitution until one year after Washington took office. No one cared. If Rhode Island had never ratified the Constitution, the Union would have still worked out OK.
The actual purpose of the Senate was to add a further guarantee of the existence of slavery. If you based political power on actual citizens, that would have been bad for the slaveholding Southern elites who were outnumbered. Since the elites had solid control over half the states, basing political power on the states helped them. Hence both the Senate and the Electoral College.
Any lingering rationale for the Senate disappeared once Senators were no longer selected by their state legislatures. Senators don’t represent “states” in any meaningful way, the state just serve as super gerrymandered election districts.
I recall that technically the completely unelected Canadian Senate has the same power as the elected House of Commons. This doesn’t matter in Canada because Canadian politicians realize that there is something wrong with an unelected legislature blocking legislation passed by an elected legislature. The Canadian Senate is used only for technical revisions to bills. The reason we have a problem with the Senate is that American politicians don’t have a big problem with the country being run by undemocratic institutions.
July 7th, 2009 at 12:17 pm
“If you think abolishing the Senate is ‘impossible’, then you’re just a fool who lacks any real sense of perspective. Develop some kind of comprehension of the scale of human events.”
Of course it’ snot “impossible”. It’s just that reasonable adults recognize that the circumstances that would allow the Senate to be abolished would almost certainly allow a whole bunch of horrible, destructive stuff to occur. Those are the sorts of circumstances that reasonable adults try to avoid.
Mike
July 7th, 2009 at 12:19 pm
“If it came down to it, a United States composed just of Massachusetts, New York, Pennsylvania, Maryland, Virginia, and the Carolinas would have worked fine.”
Yeah! It’s not like having the continent split up into different nation-states ever did Europe any harm!
Mike