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.
Washington Post editor
June 2, 2010; 9:30 AM ET
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