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The democracy behind Senate rules

By Jonathan Bernstein

I'll cut to the chase: Democratic theory does not require eliminating the filibuster; democracy is not the same thing as majority rule. On the other hand, democracy does not require supermajority rules in the Senate, so eliminating (or paring back) those rules would not be problematic.

Now, I know that a lot of people don't buy the first part of that, so before I move on to consider specific reform proposals I want to spend some time defending the position that democracy does not require majority rule. For those of you who care about the Senate but don't really care about what's justified by democratic theory, this post might not be for you. But for everyone else ... let me put it this way. The previous post explained why we're not likely to get a purely majoritarian Senate; this post talks about why that's okay.

I'll start with a favorite Hannah Arendt quotation, from "On Revolution":

We commonly equate and confound majority rule with majority decision. The latter, however, is a technical device. ... In America, at any rate [the Constitution was] framed with the express and conscious intention to prevent, as far as humanly possible, the procedures of majority decisions from generating into the "elective despotism" of majority rule.

Democracy, Arendt is saying, is rule of the people -- not rule of the majority. All of the people.

Why not majority rule? Three general reasons. Madison's reason was what he called tyranny. To a large extent, Madison's concern is pragmatic. He's aware that up to 1776, republics (and forget what someone told you; we're best off following the political theorist Robert Dahl and treating "democracy" and "republic" as interchangeable, really) were famous for being short-lived and unstable. Why? Because losers in a true majority-rules democracy, faced with a true majority, have no stake in the survival of the system and welcome a change. So one wants instead a system in which losers do not lose everything, and have a reasonable chance of winning in the future. To see the intuitive case for this, consider a situation in which you and a small group of friends need to choose an activity or a pizza topping or music to listen to. Perhaps, of the activities you all like, four of you prefer bowling, while two prefer miniature golf. Bowling, of course, "wins." And it wins the next time. After a while, however, odds are that you're all going to agree to let the miniature golf fans have a turn. That's not a violation of collective decision-making among equals; it's a consequence of it, in a situation in which it's easy to discuss fair outcomes. So even in a democracy, it's possible that the same group shouldn't always win.

We can also describe a situation in which the correct democratic solution should probably be that the minority wins: when an intense minority is opposed by an indifferent majority. I always use pizza toppings for this one. If one of your friends is a vegetarian, you're not going to insist on outvoting him and getting the pepperoni, and you're certainly not going to outvote the friend who is allergic to mushrooms. As her friend, you would realize that's just not right, even in milder versions in which, say, three of you have a very mild preference for anchovies, but the other two hate anchovies (imagine some decision rules that force such decisions; you can't cheat in this hypothetical and order a second pie, or whatever). And again, I'm going to strongly argue that two-beating-three in this situation isn't a violation of democracy, but a real, correct, democratic solution.

The third reason has to do with aggregating preferences; basically, in situations in which there are more than two options, it turns out that the math of aggregating preferences really doesn't work very well. What that means -- ugh, I don't want to get into the technical aspects of it, in large part because it's beyond my capabilities to explain it. But the basic idea is that in these situations -- which really are almost all situations, when it comes to public policy options -- "what the people want" may really be just an artifact of how voting is structured.

Put all of it together, and you have the justification for a Madisonian system in which bargaining, shifting coalitions, logrolling and other such maneuvers are used instead of simply trying to find and enact the will of the majority.

Thus the two Madisonian remedies for tyranny of the majority. The first (in Federalist 10) is having such a large and diverse nation that there are no natural majorities. The second, in Federalist 51, is to invent a whole bunch of devices to prevent majorities from acting very easily -- separated branches of government, a bicameral legislature, federalism, state governments that mimic the national government, and other features (not all of which Madison supported, and not all of which were even part of the original constitutional scheme).

Such as, for example, the filibuster.

I need to move on, but I want to emphasize before I do the implications of that first remedy, the large and diverse nation. Because there really aren't natural majorities in the U.S., at least most of the time and on most issues, it is difficult to argue that (for example) the Democrats should, on democratic grounds, be able to automatically pass their legislative agenda after winning the 2008 elections. All we know from the elections is that a particular set of candidates won. We don't know whether people supported Obama and the Democrats because of their positions on health care, or Iraq, or terrorism, or torture, or gay rights, or abortion, or climate, or energy, or any number of other issues. And of course a good number of people may have been just throwing the bums out and didn't think about specific policies, and others may have supported Obama for reasons of ethnic solidarity, or because they thought he would be a more pleasant TV presence than John McCain, or for any number of other non-policy reasons. So we cannot conclude that a popular majority supports any particular policy proposal. Nor does the argument based on accountability make sense. Even if the majority party was able to easily enact whatever they wanted, there are simply far too many issue areas, and only one vote per person. Suppose a voter wants to reward the president for his actions on health care and DADT, but punish him for his actions on Afghanistan and the economy. Only one vote! It just doesn't work. That doesn't mean that elections are useless -- I certainly don't believe that -- but it does mean that they're a blunt instrument, and more useful in providing the proper incentives for pols than they are for giving voice to what The People want.

But if democracy does not require simple majority action in the Senate, it also does not require a 60-vote Senate. Madisonian democracy does imply numerous veto points; it requires devices that block majorities from easy action, and that give intense minorities potential advantages. It does not, however, require all such devices, and there are quite a few in the constitutional system even without any specific anti-majoritarian rule in the Senate. Nor is there anything special at all about the current cloture rule: why 60? Why not 67, or 55? Democratic theory can tell us that it's okay to have a supermajority requirement, but not that any particular rule.

Next: the implications of all this for reform.

Jonathan Bernstein blogs about American politics, political institutions, and democracy at A Plain Blog About Politics, and you can follow him on Twitter here.

By Washington Post editor  |  June 2, 2010; 9:30 AM ET
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Next: Excluding the benefits


Also, to the extent that party politics dictate action in the Senate, they do not represent the diversity of opinion in the Senate itself, let alone the electorate; all the senators are pushed into 1 of 2 camps, a majority and a minority, so Madison's rationale in Federalist 10 doesn't really apply.

Posted by: jduptonma | June 2, 2010 9:49 AM | Report abuse

Under Health Care Reform, If you do not have medical insurance you can be penalized, but now you can easily find health insurance for your family under $40

Posted by: talbertjo13 | June 2, 2010 9:50 AM | Report abuse

"Suppose a voter wants to reward the president for his actions on health care and DADT, but punish him for his actions on Afghanistan and the economy. Only one vote! It just doesn't work."

Thus why "democracy" (or, at least "direct democracy") and "representative republic" are not interchangeable terms. The bicameral congress, and the arbitrary representation of the senate, actual makes a great deal of sense in a republic. Specific rules of the house or senate may not (the filibuster, anonymous holds) but it always seems to me that the hand-wringing over the unfair apportionment of senators versus population is completely vacuous. It's an apportionment that had a specific function in getting the constitution ratified, but it's also one that works in terms of helping to prevent majority tyranny and executive monarchy. Given that the US is a republic, the ability of the senate to mimic direct democracy is irrelevant. That's not what it's there for, nor is more proportional representation inherently desirable. Otherwise, we'd have no executive, and the presidency would be a committee of, say, 4 people elected by the constituents of each time zone. Or, perhaps, it would be more fair to have a dozen candidates in each presidential elections and the top 3 when a spot on the executive committee.

But people don't sit around worrying about the proportional representation of the presidency, because it's not the point of the office. And they should worry about the state-based representation of the senate.

@Talbertjo: please stop spamming. Thanks!

Posted by: Kevin_Willis | June 2, 2010 10:03 AM | Report abuse

I can agree that, in principle, a Senate where small states are over-represented, with the effect that a Republican minority has more say, and no need for a super-majority could be an effective legislative body. In practice it would not work.

I'll give two reasons: the first is that those opposed in many cases don't have an alternative preference, but rather just wish to see the majority fail.It's kind of like saying 'if you like pizza, we will automatically want something else, even if we, too like pizza'. The second reason is that the corporate oligarchy, which is as far removed from democracy as humanely possible, can easily, and in fact, does buy enough opposition to thwart meaningful reform that might be overwhelmingly popular. What is the size of the minority that wants credit card issuers to be able to wreak havoc 0n lower income consumers, or the minority that wants pay day lenders to charge 300% interest?

I know the real answer to this is to have responsible Senators who aren't swayed by big contributions, but, that being impossible, I would like to see a Senate which was more 'majority of the people' focussed with greater hurdles put in place to stop tyrannical activity by the minority.

Posted by: randy1macon | June 2, 2010 10:05 AM | Report abuse

The public intuitively gets majority decision without majority rule. Take Health care reform. Polls repeatedly showed public wanted reform, but not what was being pushed through. They want(ed) a majority decision that would benefit the public. They did not want a majority rule, tyrannical health care reform.

Unfortunately, the current system has devolved into two party majority (mob) rule rather than respectful majority decision.

Does not bode well for future of country with debt issue to solve in Medicare & Social Security. No common majority decision arises with both political parties stuck on all-or-nothing majority rule.

Posted by: Bak1 | June 2, 2010 10:32 AM | Report abuse

Great post! Very informative and easy to understand.

Posted by: roquelaure_79 | June 2, 2010 11:08 AM | Report abuse

Don't buy it.

Even a casual look at the evolution of Conservatism, Political Economy and Classical Liberal Economics shows a consensus among the elite:

Untrammeled democracy = redistribution of property. The history of representative government and particularly the kind of democratic representative government envisioned in our Constitution revolved around the argument of how to give property, or if you like capital, an offsetting vote from what was in England called 'the Mob'. Britain in the 18th and 19th century worked at this directly via restriction of the franchise, the U.S. largely took a different more institutional route by setting up the Senate in a way that privileged rural interests and so land owners.

You can go back to Ancient Greece and Rome and see this same dynamic play out, in a democratic society how do you protect property against the majority who will in accordance with just about every economic theory out there naturally vote/act in their own self interest.

Posted by: BruceWebb | June 2, 2010 11:09 AM | Report abuse

Interesting post, however, there are various traditions of "democracy" at play that often conflict with each other. As BruceWebb points out, the "republican" version, representative democracy, was designed with the protection of property rights in mind.

The ideal of self-government and equality, what I would associate with "social justice", is another version that is not always compatible with the republican one. See the recent Rand Paul comments. As George Will pointed out, Paul is lamenting the loss of a right by the owners of private property (to discriminate) through government action designed to enhance "democracy" (in the other sense of the term).

The republican version is thus appealing for those who would protect privilege, while those interested in equality would favor the alternative one.

In the health care debate, Kennedy's plea for greater social justice (and liberal bewilderment of "democracy" blocked by a minority) thus confronts those (conveniently) opposed to "totalitarian" expansion of government into private enterprise.

Same old story!

Posted by: sams2010 | June 2, 2010 12:30 PM | Report abuse

Yes to everything you wrote, but...

Madison's idea of broad, diverse minorities is an excellent model, except that we have evolved into a rigid two-party system. Any system where it would take a coalition of at least two minority groups to pass a bill would be preferable to the static environment a minority can currently enforce.

I like your friend analogies to explain the concepts, but they're only good in the abstract. Both assume people of good will toward each other on each side, and that's not the situation we have today. Not at all.

Posted by: dlk117561 | June 2, 2010 2:41 PM | Report abuse

I agree with BruceWebb that the system is designed to protect privilege and that is why the Senate is not a direct representation in that it isn't proportional.

We have already protected the minority in the senate by giving their vastly inferior numbers equal voting power.

The filibuster just magnifies that compromise to absurd levels, applying in effect a double penalty on the will of the majority.

Posted by: chrynoble | June 2, 2010 6:45 PM | Report abuse

It's (almost) always such a pleasure to read your columns and comments, Mr. Klein. I like intelligent, clear-thinking people who express themselves with clarity and logic. I like reading you even when I strongly disagree with you, in part because I know there's a good chance you'll convince me I'm wrong -- or at least that I should rethink and reanalyze my established beliefs and assumptions. So do keep giving me -- and many others -- the occasional kick in the butt we need to cast a new eye on reality (and how we perceive it).

Posted by: adreed | June 2, 2010 11:22 PM | Report abuse

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