Monday, November 23, 2009

Cloture, the Constitution and Democracy

By Mike Dorf

The recent procedural theatrics over starting Senate debate on the health care bill provide only the latest occasion for reflecting on the oddity of the cloture rule, which effectively requires 60 votes to accomplish anything in our upper house.  A naive reader of Article I, Section 7 of the Constitution would think that all it takes for the Senate to act positively on a bill is for a simple majority to vote in favor of it.  Section 7 doesn't expressly state this point, but that's the only fair inference from a provision that discusses "yeas and nays," and also specifies a particular super-majority (2/3) for overcoming a veto.

Plus, various other provisions of Article I specify various super-majorities, leading to the only plausible inference that ordinary legislation requires only a simple majority.  The kicker is Article I, Section 3, which only gives the Vice President a vote in the Senate if the other Senators "be equally divided."  This provision makes no sense unless it is meant to give the VP the power to break a tie by creating a bare majority.  And indeed, no one has seriously doubted the simple-majority voting rule for ordinary legislation.  Except, of course, that the cloture rule effectively requires a 3/5 majority to accomplish anything, so long as the minority Senators are willing to translate their votes on the merits into votes on whether to end debate.

I am not interested right now in arguing that the cloture rule is unconstitutional.  Article I also gives each house the power to set its own procedural rules, and so it is at least plausible to contend that adding procedural "veto gates" via procedural rules is simply part of the Senate's power.  Nor is it obvious to me that the various minority protections in the Senate rules (including not just the cloture rule but various individual privileges and the complex committee system) are, over the long run, likely to favor conservatives or progressives.

One might think that, over the long run, veto gates benefit conservatives more than progressives, as blocking powers tend to lead to gridlock, and conservatives generally want the government not to do things, while progressives want the government to do things (like guarantee health care, combat global warming, etc.)  But I don't think this analysis carries through.  Given a status quo of no-law, conservatives will systematically benefit more from blocking powers than progressives will (assuming equal likelihood of being in the majority or minority).  However, we do not have a no-law status quo.  We have a status quo of substantial government and so when conservatives come to power, progressives find blocking powers quite useful in trying to stop the formers' efforts to enact legislation rolling back government.  Another way to put the point might be to say that modern conservatives are not "conservative" in the literal sense of wanting to conserve the status quo: They have an ideology that is generally skeptical of government efforts to regulate the private sector (except when the private sector is actually inside people's bedrooms or women's uteri, in which case they're generally for such regulation, as sardonically explained here).

Even if I'm right about all of the foregoing, one might still think that, on balance, veto gates like the filibuster are a bad idea because, though not systematically favoring conservatives or progressives, they systematically favor the legal status quo, thus frustrating translation of the democratic will into legislative action.  Now the nice point about this criticism is that it's not vulnerable to the typical rejoinder, which is that a substantial goal of our system of representative government is to frustrate plain old majoritarianism.  The reason that rejoinder won't wash is that it is usually married to a libertarian argument that the threats from government action are greater than the threats from government inaction.  But we've just seen that veto gates can frustrate efforts to get the government to STOP acting as well as they can frustrate efforts to get the government to act.

I can think of two other possible defenses of veto gates like the cloture rule in response to the democratic objection.  First, we might note that the Senate is already a dismal example of democracy, given that Wyoming and North Dakota get the same number of Senators as California and Texas.  Thus, the "minority" Senators trying to block legislative action can actually represent a majority of the population.  The problem with this response is that it can just as easily cut the other way.  Senators representing a truly TINY proportion of the population can use the cloture rule to block the wishes of the supermajority.

That brings me to the second possible defense of veto gates like the cloture rule: A Burkean skepticism of all manner of legal change.  If one were traditionally conservative in this sense, then one would be wary of any major change in our legal arrangements absent truly overwhelming popular support.  Is that a persuasive response?  Here I find it very difficult to separate my substantive views from my views about institutional design.  When I share the views of the majority of my fellow citizens, then I am inclined to the Wilsonian frustration with how difficult our system of government makes it to get anything done; when I find myself in the minority, I'm with Burke.


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