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Having It Both Ways on Majority-Rule

During Barack Obama's first two years in the White House, liberal commentators devoted millions of pixels to denouncing the use of the filibuster by Senate Republicans.  Others may have written more often about how a legislative minority's resort to arcane procedures to frustrate the will of the majority was an affront to democracy, but no one wrote about it more passionately than Hendrik Hertzberg of The New Yorker.  Filibusters, he argued earlier this year, have become "as common as sunsets--and as destructive as tsunamis."  The de facto requirement that no bill will be passed by the Senate without a super-majority of 60 votes means, in theory, "The minority can't quite rule, exactly, but it can, and does, use the rules to ruin."  In practice, the result was that "dozens of ... worthy measures--all of which passed the House and had majority support in the Senate" - wound up rejected by Congress.

Such ringing, sweeping pleas for plain-old majority rule in our elected legislatures became awkward two weeks ago when the 14 Democratic members of the Wisconsin state senate decided to leave the capitol - and apparently the state - to prevent the 19 Republican senators from voting on Governor Scott Walker's proposals to reduce the power and prerogatives of the labor unions representing state and municipal employees.  Ordinarily, a majority of 17 senators would be enough to provide a quorum in a senate with 33 members, allowing legislative business to proceed.  The state constitution, however, requires  20 senators for a quorum to consider bills, such as Walker's, relating to the budget.  (This super-majority of 60.6% is almost exactly the same as the percentage of U.S. Senators needed to break a filibuster.)

Consistency being the hobgoblin of little minds like mine, I've been hoping to see one of the filibuster's critics step forward to denounce the Fugitive Fourteen for resorting to parliamentary tricks to impede the will of the majority.  That Democratic minority in the state senate can't rule, exactly, but appears determined to use the rules to ruin.  As a result, a bill that passed the Wisconsin state assembly and for which a majority of democratically elected state senators  clearly intend to vote languishes.

This week Hertzberg sets our minds at ease, explaining patiently that the one thing has absolutely nothing to do with the other: "Liberals who applaud the Wisconsin senators' interstate flight have been accused of hypocrisy, given that these same liberals indignantly reject the undemocratic use of the filibuster in the Senate of the United States. The analogy is as clever as it is flawed. The Wisconsinites are not trying to kill the bill (they can't stay away forever); they merely want to delay a vote in the hope of mobilizing public support for compromise. And, instead of simply declaring an intention--the only effort a modern filibuster requires--they have to do something; to wit, camp out in cheap motels at their own expense, away from their families. They even have to forgo their own salaries: the Republicans have halted direct deposit to their skedaddling colleagues' bank accounts. If they want to get paid, they have to come back to Madison to pick up a paycheck."

The argument is as weak as it is tendentious.  Because the clock is always ticking in a legislative body, the distinction between delaying and trying to kill a bill has hundreds of shades of gray.  The Wisconsin senators don't need to stay away forever - just long enough that the necessity of addressing other public business in a reconvened senate forces Walker and his allies to accept a "compromise" that is indistinguishable from a capitulation.  Mobilizing public support is exactly what Republican senators wanted by running the four-corners offense against the health care bill in 2009, a tactic that seemed like it might make the difference when Republican Scott Brown won a surprising victory in a special election to represent Massachusetts in the U.S. Senate.  The liberal chorus after that election did not call for Democrats to re-assess their approach to health reform in light of an electoral rebuke, but to redouble their commitment to passing the bill Brown had denounced as the central plank of his successful campaign.

The agonies of the skedaddled senators, living apart from their families and paychecks in cheap Illinois hotels, don't move the needle, either.  This year's Democratic state senators, like last year's Republican U.S. senators, are playing the game according to the rules, taking advantage of its opportunities and forbearing its inconveniences.  The reason the passionate denunciations of the filibuster never kindled the outrage of anyone outside the liberal blogosphere is that people have a basic grasp of fairness: the rules can be sixteen kinds of idiosyncratic, but if both sides have to play by the same rules, the contest is fundamentally fair.  Furthermore, in a country as closely divided as the U.S. has been for the past 20 years, procedural departures from strict majority-rule persist because politicians in the majority party can easily envision being in the minority in an election or two, and would rather be frustrated now than defenseless then. 

Rather than embarrass themselves by insisting that fundamentally similar parliamentary procedures in Washington and Madison are decisively different, the filibuster critics would be better off acknowledging that their arguments were, all along, in the service of their policy preferences.  The filibuster was wicked when it bottled up worthy bills proposed by Obama.  By contrast, denying a majority the quorum needed to pass an "unworthy" bill, such as Walker's, reflects the highest ideals of deliberative democracy.  Real candor about by-any-means-necessary polemics would be a big step up from sermons about procedural imperatives that magically stop being imperative the minute they stop being politically useful.

P.S. Mr. Hertzberg expands on his thoughts that the Democrats' refusal to provide the Wisconsin senate majority is not the moral equivalent of the Republicans' filibuster in a live chat with New Yorker readers.   "What do you think the Wisconsin Senate Democrats should do now?" one asked yesterday.  "I think they should stand firm and set an example of solidarity," Hertzberg replied, "a virtue that has been nearly forgotten.  If this drags on for more weeks, I'd like to see those 14 state senators get together, go on the web, and run a sort of classroom/seminar in the history and purposes of trade unions." 

I challenge readers who are already puzzling over the claim that frustrating senate majorities in Washington is abominable, while frustrating them in Wisconsin is heroic, to go on to the extra-credit question: If the redeeming virtue of the Wisconsin Democratic senators' decision to prevent a quorum is that they "merely" want to delay a vote on a bill that they can't kill, since they can't stay away forever, how does encouraging them to express the archaic virtue of solidarity by staying away for weeks [why not months? or until the 2012 elections?] in order to bring some proletarian realism to a computer screen near you add moral force to the distinction between the lack of a quorum in Madison and the failure to invoke cloture in Washington?  To further clarify matters, Hertzberg adds that "there really should be a way for people to help" the road warrior legislators who are paying their Motel 6 bills out of their own pockets.  That will help bring home the senators who can't stay away forever, and encourage the spirit of compromise.

Categories > Politics

Discussions - 7 Comments

I agree

Of course you could argue that you are (and I am, I think) too academic about these sorts of contradictions.

It is a legal sort of debate. Both sides make the argument because they feel they have to do so. Who it convinces I don't know. But apparently I think it convinces those who actually bother the time to invest themselves in making the point.

You could say that it props up demand for post-partisans. (If everything has its own strange supply and demand.)

I actually like the quorum rules, and I think from looking at Business Associations and takeover bid cases that it is a vital element in ensureing some level of minority control. I don't know if because I like them for some businesses I like them for some states.

It is not like these sorts of procedural rules aren't common and typical with slight variations in all of american law.

You can actually tweak these rules if you want to, but neither side wants to in part because it would disable them from distinguishing themselves on principle, or a high priority issue.

I may be going too far down an academic route, and you may if you wish want to preserve the analogy between state governments and the federal government, but again this seems to me to be easily distinguishable if you look at "Jurisdiction".

Assuming the highway patrol isn't uber-partisan and simply decides to sit on its ass, rather than enforce a law that could result in pay cuts...(Highly unlikely, and not the reason!)

The state of Wisconsin, has no state actors with jurisdiction in foreign states. The highway patrol cannot bring back the democrats.

On the other hand if Congress or the Senate tries something similar, U.S. Marshalls would have jurisdiction to bring them back to Washington.

All over the world, it is the president's responsibility to handle the members of the organization. And in that matter the president must give sufficient salary to the work that has been rendered of the service. And if many are thinking that the money is not worthwhile of the serviced that has been offered, it's because they are not working for the accurate tasks which was given to them.

Hendrik Hertzberg was an aide to Jimmy Carter and in part as a consequence has had a long-standing complaint against the institutional architecture of the Constitution. The complaints about the filibuster are not (on his part) novel.

When he resigned as editor of The New Republic in 1985, he offered that he had learned over the previous four years that he could be friends with people with whom he disagreed politically. He was 42 years old when he penned that line. He is now 67 and it appears not to have reached his viscera that correct conduct does not reliably respect boundaries of political affiliation.

The more I think about the WI situation, the more I hope it comes down to recall elections. I know recall petitions are circulating regarding WI state senators from both parties. For the voters to weigh in on the fleebaggers' tactics would be the most satisfying resolution, whichever way it goes (if it takes actually driving the state off a fiscal cliff to make people see what the pub-emp unions have wrought, so be it).

For the most part, the same liberals who denounced the Republicans for using the fillibuster last year, praised the Democrats when they fillibustered Republican initiatives in previous congresses.

Liberals have never belived in consistency, and the media has never seen fit to call them on it.

The Framers of the United States Constitution intended that both the United States House of Representatives and the United States Senate would conduct themselves according to the principle of majority rule.

This is why Article 1, Section 5 states that a majority is sufficient for a quorum and why Article 1, Section 3 states that the Vice President shall have no vote in the United States Senate unless the vote is "evenly divided."

How did the United States Senate end up with the filibuster rule? Vice President Aaron Burr, during President Jefferson's administration, decided to delete a rule from the Standing Rules of the Senate. This created a loophole which made it impossible to end debate on an item of Senate business without the unanimous consent of the Senators.

As the United States was preparing to enter World War One, eleven isolationist United States Senators filibusterd the Armed Ship Bill. Outraged Senators threatened to use the "Constitutional Option" to change the Standing Rules of the Senate. They eventually won the battle, adding a rule that required only 2/3rds of all Senators Present and Voting to end debate (cloture).

In 1975 Senators Mondale and others used the "Constitutional Option" to change the requirement for ending debate from 2/3rds of all Senators present and voting to 3/5ths of all Senators chosen and sworn.

The Framers had it right. Majority should rule, except for over-riding a presidential veto, treaty ratification.

Governor Scott Walker has it right, on both procedural grounds and policy grounds.

When the fleeing Wisconsin Democrats return to Madison, Wisconsin, the first item of business should be Walker's budget repair bill.

The second item of business should be an amendment to the Wisconsin state Constitution, changing the quorum requirement from 3/5ths to a simple majority.

I believe the WI Senate's 3/5ths-quorum rule is only for fiscal bills; otherwise it's a simple majority. In fact, what happened to the talk that Gov. Walker and the GOP were gonna find a bunch of stuff that Dems would hate but which could nonetheless be passed by simp-maj vote while the Fleebaggin' 14 are hiding in Ilinois?

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