This Is Not News

About a week ago, a standoff over rules in the US Senate was temporarily averted when a number of Republicans agreed to end filibusters on seven of President Obama’s appointees to executive branch positions. The deal means that, at least for now, Democrats in the Senate will not use parliamentary procedure to change the Senate rules. This sort of dealmaking has been going on for a while, since with the exception of a few months in 2009 and 2010, Democrats have had a majority in the Senate but not a filibuster-proof majority. What seems different this time is that most reports indicate that this time there were 51 Democrats who were willing to vote to change the Senate rules on a strict majority vote rather than the 2/3 majority that is explicitly stated in the standing Senate rules. This is similar to a situation in 2005 when the Republicans had the majority and were threatening to use a similar parliamentary procedure to eliminate the filibuster on judicial nominations.

So now it seems like both parties have acknowledged that the majority can change the rules if it wants to, even though neither party has. Jed Lewison at Daily Kos argued that this means that from here on out, it should be clear that if the minority blocks a bill or an appointment using the filibuster, then the majority is complicit in allowing the minority to do so.

That doesn’t mean the filibuster is gone, and it doesn’t mean Republicans won’t continue to abuse it. It’s here, and surely they will. But when they do, Democrats won’t be able to claim to be powerless in the face of GOP obstruction.

I don’t know if it’s fair to say that the majority is just as responsible for every filibuster from here on out, but it would be fair to say that many people in the majority prefer keeping some of the norms and customs of the Senate intact over passing whatever law is being filibustered at the time. In this case, the norms being preserved are that changes to the rules are approved by a supermajority and the minority has significant ability to check the decisions of the majority.

I’ve been of the opinion for a while now that the filibuster is a problematic institution, and I support the efforts of people like Senator Jeff Merkley to substantially revise the procedure. But I am also sympathetic to the desire of some senators to maintain the “unwritten rules” that have guided senators for a long time. Norms, customs, and unwritten rules are an important part of any system or any society, and it’s important that members of the group have confidence that their peers will respect those norms.

Why are norms so important? Because no formal set of established rules and procedures is going to be able to cover every situation or be so comprehensive as to leave no wiggle room for ambiguity and exploitation. I can attest to this I spend my day teaching high school students, and then I come home and try to herd my 11-year-old daughter through her daily requirements. I am constantly on Loophole Alert, trying to spot the creative ways that someone will try to exploit the letter of my instructions in order to avoid following the spirit of the instructions. [Me: “Use the word platoon in a sentence.” Student: “The teacher told me to use the word platoon in a sentence.”] Some of this is good, in that it keeps me on my toes. But it gets a little exhausting, and sometimes I just need to rely on common sense, etiquette, tradition, or whatever you want to call it to grease the wheels and keep things moving.

The same is true in other social and political institutions. Last week I noticed some people on Facebook posting that Queen Elizabeth II had “approved” same sex marriage and so the bill supported by Prime Minister David Cameron had become a law. That’s technically true, but the queen’s approval is pretty much a formality. Once the bill had passed through the House of Lords and the House of Commons, the queen was going to approve it regardless of what she thought. I couldn’t even find an article at the Guardian that noted the Queen’s approval. Once the bill had cleared all of the attempts to block it, the newspaper did not cover the formalities because the formalities weren’t actually news.

Technically, did the Queen have the power to reject the same sex marriage bill? I suppose so. But if she had, and inserted her own opinion over that of the democratically elected Parliament, it would have created enormous problems in British society. Democracy is maintained alongside a traditional monarchy through the power of norms and customs, not the power of formal rules. If someone tries to exercise a power that is technically “within the rules” but against the norms, then forces will rise to check and punish the overstepper. If the Queen were ever to reject a law duly passed by Parliament, I think the United Kingdom would be changing its name to the United Republic faster than you can ceremonial monarchy.

There will always be tension around norms and unwritten rules. Some people will not agree with them, some people will not respect them, some people will want to push the boundaries. And that’s a process that should go on; sometimes the unwritten rules break down and need to be revised, rethought, and codified. But when we weaken the power of norms and customs, there are consequences, and that’s something we have seen happen in the Senate over the last 20 years.

It used to be that senators were comfortable with voting for cloture on a bill and then voting against it. The norm was to say, “Even if I don’t agree with this bill, I respect the majority’s right to pass it over my objection.” But over time, especially as more voters and activists came to recognize that a minority had the power to block a bill if it chose to use it, voting for cloture became tantamount to voting for the bill itself. Pressure groups scored cloture votes, not just final votes. Activist blogs and networks organized campaigns to hold senators accountable for their cloture votes. Some senators were threatened with primary opponents based on their cloture votes. And all of this was taking place as the political parties grew more ideologically coherent and willing to use the parliamentary tools at their disposal to promote their agendas. All of these forces have been wearing down the old norms.

I still hope that the end result of that process is a reformed or removed filibuster that allows the Senate to more clearly respond to the decisions of the voters. But in the process the Senate is going to have to build a new set of norms and unwritten rules to replace the ones that have eroded. That’s a process that we as voters should observe and try to influence, but also one that will require some patience as people work it out.

Wendy Davis’ filibuster in the Texas state Senate has been a great story from the perspective of democratic theory because it requires people to really think about what’s fundamental in a democracy. If you haven’t been following the story, here’s a link to the Dallas Morning News story from the day after. The basics of the story are:

1. The Texas legislature wanted to pass Senate Bill 5, a bill that introduced several severe restrictions to abortion rights. The Republican majority in the state Senate easily had enough votes to pass the bill.
2. The rules of the state Senate required that the Senate needed to pass SB5 before midnight, when the session ended. So Democratic state senator Wendy Davis attempted to filibuster for 13 straight hours in order to run out the clock on the session.
3. The state Senate’s filibuster rules are much stricter than those in the U.S. Senate. With about two hours to go before the midnight deadline, the chair (Texas’ lieutenant governor, David Dewhurst) ruled that Davis had violated the rules three times and that therefore she had lost the floor.
4. Other Democrats in the state Senate tried to draw things out by raising points of order and debating whether Davis really had violated the rules three times, but with about fifteen minutes left before the deadline they appeared to have exhausted all avenues. As Dewhurst prepared to conduct the vote, the crowd in the gallery began chanting and cheering so loudly that no one could hear the roll call.
5. Dewhurst tried to get the vote finished by midnight by calling legislators up one by one to record their vote, and claimed that the bill had been passed.
6. However, after the Senate’s own website showed that the vote was originally recorded after midnight – and then backdated to show that it made the deadline – Dewhurst had to declare that the bill had failed.

There is a lot more detail that’s worth reading, but one thing I find fascinating about the story is that for every step of the process, you could make an argument that the action was pro-democratic or anti-democratic.

Let’s start at the beginning. The pro-democratic argument for the Republicans is pretty straightforward – a majority of senators wanted to pass the bill. Governor Rick Perry, who was elected with a majority of votes, wanted to sign it. So if this bill is what the people, through their duly elected representatives, want to pass, then it should pass.

On the flip side, the pro-democratic argument for Davis’ filibuster is that even in a democracy, certain individual rights must be protected against a tyranny of the majority. Senate Bill 5 severely restricted women’s access to abortion, and therefore interfered with their basic right to make decisions about their own health care and indeed their own bodies. So respect for individual rights must trump respect for majority rule, and Davis was protecting democracy by acting to block the bill. Furthermore, by attracting news coverage of the issue, she enabled the public to become more aware of the bill and the Senate procedures involved, and a more informed public is also a major good for democracy.

(Let me make a quick side note here that is separate from the proceedings in Texas. In the United States, the judicial system can act as another check on the majority in order to protect the rights of the individual citizen. Pro-choice groups have filed lawsuits in other states that passed laws similar to SB 5, and would presumably do so in Texas if SB 5 ultimately passes. I’m moving that issue to the side here for two reasons: 1) Judicial review is a different, although worthwhile, topic to discuss in democratic theory, and 2) I don’t want to bet much on what the current Supreme Court would rule.)

Obviously, whether access to abortion is such a fundamental right that it supersedes the default respect for majority rule is an unsettled question in our democracy. As an individual, I agree with Davis. But a democratic society simply can’t function if any one person gets to impose his or her belief about what is right on the rest of the public. So you can defend Dewhurst and the Republicans for using points of order to try to derail the filibuster by saying that, while a filibuster might be acceptable in extreme cases, it should be onerous and difficult enough that it is only used in extreme circumstances. Thus, if Davis can not follow the accepted rules, then deference to majority rule should come into play.

The efforts by Davis’ Democratic colleagues can be defended on similar lines as the original filibuster, but the final fifteen minutes when the gallery effectively blocked the passage of the bill is an entirely different case. Here you have an example of the citizens literally using their voices to affect legislation and be involved in the process beyond the simple procedure of electing representatives, which points to a more vibrant and participatory vision of democracy.

However, there is no way of knowing if the crowd in the gallery was in any way representative of the people of Texas. The Republicans in favor of SB 5 clearly did not think so. So at the end of the day, if Davis’ filibuster had not persuaded them, it makes sense that they would try to carry out the vote that they had believed fulfilled the democratic process from day one. And even if the vote concluded at 12:02 AM rather than 11:59 PM, isn’t it worth allowing for some human flexibility so that we can follow the spirit of the rules rather than get trapped by the letter?

But in the end, we have rules and procedures to ensure that both sides of a debate can be fairly heard, and they are an important safeguard. So by highlighting the violation of the rule, the people who took screenshots of the website and shared them on social media were performing an important role in the functioning of a democratic government.

In the end, I am relatively comfortable with how the story has played out. SB 5 has only been delayed, not stopped altogether. Governor Perry has already called for another session of the legislature. If the attention mobilizes a group of voters to put pressure on the legislature, that might stop the bill. Or it is possible that this story might galvanize voters who make changes in the composition of the Texas government – there is already a movement on Daily Kos to draft Davis for a gubernatorial run. If none of that happens, then we have to assume that Davis and the gallery crowd were only speaking for a passionate minority. Again, I will not personally approve of the result, but being in a democracy requires accepting policy outcomes you don’t like. In those cases, you have to hope that everyone made their choices after careful thought and with as much information as possible. At the moment, I think the events in Texas have made that more likely than not.

Jonathan Chait had a brief post today at New York Magazine’s Daily Intelligencer blog, commenting on President Obama’s speech calling on Congress to vote on gun control measures. After citing the institutional roadblocks that are thwarting efforts to enact legislation that polls well, Chait says,

Basically, everything is more powerful than millions of voices calling for change.

Chait’s laying it on a little thick, deliberately so I think, but his point remains. We don’t enact laws by public opinion polls. We don’t vote based on party platforms. People saying they support something doesn’t mean a whole lot.

What would matter would be millions of votes demanding change. Would a red-state Democrat who hasn’t endorsed background checks lose a primary challenge to someone who does? Will a suburban Republican Congressperson lose a general election in 2014 for voting against whatever package passes the Senate? Will someone who hasn’t bothered to vote before get up and cast a vote in 2014 for someone who supports stricter gun control? If the answer to that is no, then the millions of voices aren’t really calling for change. At best, they’re offering a tepid interest in the possibility of change, but they’re not willing to act on that wish.

It goes back to Charles Peirce – you can tell the content of someone’s beliefs not through the words they use to express it, but through the actions that they take because of it.

In 2011 I wrote Thinking Through the Hostage Metaphor, where I suggested that in the hostage-taker analogy, the American public was like a sniper that could defeat the hostage-taker in the 2012 election. Well, for the most part, the American public took its shot, voting for Democratic candidates by a considerable majority. But thanks to the filibuster in the Senate (which I still hope will be reformed) and the combination of gerrymandering and heavily-Democratic urban districts giving Republicans a majority in the House, the Republican Party can still take some hostages to force the Democrats to do what they want. I’m starting to think we may be at the point where it’s time to shoot the hostage in the leg to get him out of the way of the hostage-taker. (Yeah, I saw Speed. Sue me.) It may be necessary to allow for some short term pain like a government shutdown in order to motivate some of the Republicans’ allies to come get the allegorical gun out of their hands. This is not gong to be a good ting if it happens, and I will not yell from the rafters if Democrats figure out some way to negotiate a decent tradeoff. But I’m having a harder and harder time seeing how we get to that point without some rough sledding first.

Took a nap, got up, watched the debate, wished I had stayed in bed.

I think Romney had an inherent advantage in that the debates are the clearest case where Obama has to defend his record, and even if you’re someone like me who thinks Obama’s gotten things 75%-90% right in his first term, that still leaves 10-25% of things to press on. And Romney did a good job of pressing.

I’m no judge of rhetoric, but I thought Romney talked too fast and Obama talked too slow.

At one point I liked Jim Lehrer, but I was more disappointed in him than anyone. I don’t think his questions were good and he had little control over the debate – which may be one reason why it seemed like a lot of topics did not come up.

I’m gonna hold out hope that the town hall in a couple of weeks has a more varied range of topics. But I may just stick with the nap.

I need some time to pull some thoughts together for a longer post. But for the moment I’m reading the Guardian’s coverage of the Labour Party conference and feeling some serious envy. This week it’s seemed like the conference was actually a matter of people in the party trying to work out differences, although maybe it’s just rose-colored glasses from across the pond comparing it to our party conventions. And while this might sound silly, since I’m talking about a party conference in 2012 when the next British parliamentary election isn’t until 2015, I like the fact that there’s an ongoing conversation about the party that isn’t tied to a specific campaign. It could just be that I’m tired of presidential campaigns in America that seem to take two years and take place outside of the normal legislative process. In the US, Mitt Romney has been campaigning for two years (or more) but hasn’t had an official role since 2007. In Britain, Ed Milliband has been in the parliamentary trenches since becoming the part leader in 2010. I think that allows for more accountability and ties elections more closely to actual governance.

Between Bill Clinton turning “Arithmetic!” into an applause line, John Kerry using Rocky IV to slam Mitt Romney, and Joe Biden’s irrepressible Joe Bidenness, I won’t have the brainpower to fully process the speeches from the Democratic Convention until the weekend. But here’s my favorite part of President Obama’s speech:

So you see, the election four years ago wasn’t about me. It was about you. My fellow citizens – you were the change.

You’re the reason there’s a little girl with a heart disorder in Phoenix who’ll get the surgery she needs because an insurance company can’t limit her coverage. You did that.

You’re the reason a young man in Colorado who never thought he’d be able to afford his dream of earning a medical degree is about to get that chance. You made that possible.

You’re the reason a young immigrant who grew up here and went to school here and pledged allegiance to our flag will no longer be deported from the only country she’s ever called home; why selfless soldiers won’t be kicked out of the military because of who they are or who they love; why thousands of families have finally been able to say to the loved ones who served us so bravely: “Welcome home.”

If you turn away now – if you buy into the cynicism that the change we fought for isn’t possible…well, change will not happen. If you give up on the idea that your voice can make a difference, then other voices will fill the void: lobbyists and special interests; the people with the $10 million checks who are trying to buy this election and those who are making it harder for you to vote; Washington politicians who want to decide who you can marry, or control health care choices that women should make for themselves.

Democracy is not about constitutions and institutions. It’s not about politicians and parliamentarians. It’s about citizens, taking responsibility not only for themselves but for their society. We don’t just live in our nation. We don’t just serve our nation. We don’t just preserve our nation. We build our nation. Always, every day, in moments small and large, we build it. We build it together. Let’s strive to build it with wisdom, with compassion, and with determination.

Let me pick up on the discussion of the British House of Lords that I started a few days ago. I’m a big proponent of changing some of our government institutions here in the US, so it’s been instructive to me to look at the difficulties that the UK has faced in trying to do so.

Quick intro-to-Parliament here: the House of Commons is a lot like our House of Representatives. The nation is divided into districts (called constituencies). Voters in that district vote for the one candidate that they want to represent them. Whichever candidate gets more votes than any other candidate becomes the Member of Parliament (MP) from that constituency. This type of system is often referred to as single-member district (because only one person can win the election and represent the area) with a first-past-the-post election system (because whoever is in the lead when the election is over is declared the winner).

Now, an important contrast between the American and British system is that in the British system, the House of Commons also controls the executive branch of the government. There is no separate election for the chief executive. A majority of the House of Commons decides who will be the Prime Minister. If one party has a majority of the seats in the House of Commons, then the leader of that party becomes Prime Minister. If no party has an outright majority, then the party that has the most seats will try to form a coalition with smaller parties to get their support. In that case the leader of the large party would most likely become Prime Minister and folks from the smaller parties would get important positions in the government. Imagine if Nancy Pelosi had immediately become President when the Democrats won control of the House of Representatives in 2006 or that John Boehner immediately became President when the Republicans won in 2010, and you get the idea. (When I say immediately, I mean there’s no months-long transition between the election and the swearing-in of the winners. It all happens in a matter of days.)

Personally, I find this system much more appealing than ours. I hate divided government, where one party controls all or part of the legislative branch and another party controls the executive. Neither side is able to implement its platform. Each side waters down the other sides’ proposals and makes legislation more complicated. Each side blames the other side when things go wrong and grabs the credit when things go right. Voters don’t get a strong sense of what each party stands for or the consequences of each side’s favored policies. Reading from afar, it seems to me like people take the parties’ manifestos (their statement of priorities and proposals) a lot more seriously than folks take party platforms in America. I think this is in part because voters in the UK know that if a party wins control of the government, they are likely to have the power to enact whatever they put in their manifesto, and can make the credible claim that that’s what voters want them to do. Thus the process of debating and drafting the manifesto helps voters become more informed, and when things turn out well or poorly, there’s no confusion about where to place the credit or the blame.

But all of that is connected to the House of Commons in the UK. Wasn’t I talking about the House of Lords? Supposedly. Here’s the thing. Once upon a time, the House of Lords was the more powerful chamber of the British government. If you held an important rank in the nobility or the clergy, you had a seat in the House of Lords. If your noble title passed on to your heir, so did your seat. And if those elected commoners in the other chamber got above their station and passed a bill you didn’t like, you and your fellow Lords could reject it. As the notions of equal rights, universal suffrage, and democratic representation took hold, the members of the House of Commons became unwilling to put up with that kind of treatment. With support from the monarchy, the House of Commons was able to force the House of Lords to accept the Parliament Acts, laws that establish that the House of Lords can not reject a bill that has been passed by the House of Commons. (The UK has no written constitution, so the structure of its government is established by laws passed by the government.)

So if the Lords can’t reject a bill, what can it do? It has some powers to investigate and hold hearings, and in terms of passing laws, they can propose amendments to a bill. If the Commons does not want to accept these amendments and pass the bill in its original form, it has to wait a year and hold a second vote on the bill. That’s the procedural guarantee that the Commons is the primary chamber – even if the Lords uses its statutory power to its maximum, the most it can do is delay passage of a law by a year. In practice, it’s also looked down upon for the Lords to reject a bill that was specifically described in the governing party’s manifesto, but that’s more of a “we have this power but we agree not to use it” kind of thing, and after seeing the explosion of filibusters in the Senate I don’t really like relying on those types of cultural restraints.

Now these days, only a small number of the seats in the House of Lords are passed on to the member’s heir. A reform in the 1990s replaced most of the hereditary seats with lifetime appointments. But there are still a number of people who think it’s ridiculous for a democratic country in the 21st century to have any kind of aristocratic, unelected power structure. A minority party in the UK, the Liberal Democrats, have held this view for a while, and in 2010 the election for control of the House of Commons was so close that neither the Labour Party nor the Conservative Party won a majority of the seats. The Liberal Democrats controlled just enough seats that they could tip the balance of power either way. They chose to form a coalition with the Conservatives, and one of their terms was that the House of Lords would be transformed into an elected body. The leaders of the Conservative Party agreed.

What no one fully appreciated was that not every Conservative member of Parliament was willing to go along with the deal. A small but significant minority of them refused to go along with the plan. It appears that the minority was significant enough to derail the whole thing, and now many people wonder if the coalition can survive to the end of the government’s term in 2015. But what I’ve been wondering is whether I’m glad to see the effort fail or not. This kind of surprises me. Given my feelings about democracy, you’d think I’d be all over the expansion of voter control over the government. All things being equal, I probably would support it.

The thing is, even though I expressed my skepticism about cultural restraints a couple of paragraphs ago, they do have some impact. Even the US Senate doesn’t filibuster everything. And it seems to me like the House of Lords knows it’s on a short leash and can’t be seen as abusing its power or else the entire thing might be abolished. If the members were elected, I don’t see why they’d have that restraint. They could justifiably say that they were elected to exercise certain powers and so it’s perfectly legitimate for them to do so. And that would set up more situations like we currently have in the US, where the Republicans control one chamber of the legislature while the Democrats control the other and the Republicans have significant procedural power to slow or even reject legislation in that chamber. The Conservatives might hold a majority in the Commons while Labor and the Liberal Democrats control a majority of the Lords and use that majority to slow down every bill the Commons passes and demand concessions. At that point the government stops being driven by a relatively clear vision and becomes a muddle. I’m not sure that helps democracy.

The idea of a unicameral legislature has a lot of appeal to me, so I don’t know if I’d be heartbroken if the UK eliminated the House of Lords altogether. And there’s probably a way to change the Lords to give it elected members while very clearly curtailing its power. But it’s a change of such magnitude that it needs to be thought out very carefully so that the unintended consequences don’t overwhelm the desired benefits of the change.

I posted yesterday about my efforts to learn more about the United Kingdom’s efforts to reform its House of Lords. At the moment, it looks like that effort is going nowhere, because a small number of Conservative members of Parliament are refusing to support it. Whether or not that’s a good thing depends in part on whether you think it’s important that a democratic government be responsive to its citizens. Should our elected officials see their job as going what the people want them to do? Or should they see it as doing whatever they think is right, and then hoping to convince the people later? The knee jerk reaction might be to say the latter, but America’s system, in part by design and in part by accident, is set up much more along the latter lines.

One reason for this is that in our government, it is almost impossible for a majority at an given time to actually elect a set of government officials who will follow their desires. Look at all of the roadblocks that exist between a popular majority and the final enactment of a law. (Some of this may be obvious or common knowledge, but I think there’s value in looking at all of htese peices of information as a total package.)

• Lawmaking power is split between a legislative branch and an executive branch. Congress must pass a bill and the president must sign it before it becomes a law. If the two disagree, they can block each other, so neither one gets to enact its preferred policy.
• This is exacerbated by the staggered terms on which these officials are elected. We vote for president every four years. These tend to be the highest profile elections we have with the highest turnout. But members of one chamber of Congress, the House of Representatives, are elected very two years. So every other House election happens in a year without a presidential election. These elections tend to have have lower turnout and often result in the party that doesn’t control the presidency gaining power in Congress. To compound the issue, members of the other house, the Senate, are elected to six year terms. Every two years, one-third of the seats in the Senate come up for election. So whatever the public wants at any given election, there’s two-thirds of the Senate that wasn’t necessarily elected with that goal in mind. If the public’s desires are consistent, that’s no big deal, but if the public changes its mind about something, it’ll be six years before the Senate will fully reflect that change.
• The Senate also gives each state an equal number of votes, regardless of population. So even if the entire population of the state of California wants something, the states of Utah and Alaska could override that desire.
• The president is not actually elected by a national popular vote, but by an electoral college that assigns a number of votes to each state in such a way that it is possible, although unlikely, that someone could lose the popular vote and still win the presidency.
• On top of all of these built-in structural features, the Senate has developed a number of traditions and procedures that allow a minority to slow down or even block a bill. CHief among these are the filibuster, in which three-fifths of the senators must vote to stop talking about a bill before it can be voted on. So 59 out of 100 senators can support a law, and that law will not pass.
• When a law is finally passed and signed, it can be reviewed and overturned by a Supreme Court whose members hold lifetime terms, meaning that a law passed today will have to meet the approal of justices appointed 20 or 25 years ago.

These structural and procedural systems make it very hard for any party or any president to make major changes in our system. Once those changes go through, it’s very hard to undo them. Some people say that this a strength of our checks-and-balances system – the government will not swing wildly from one policy to another based on which party has won the most recent election, but will be required to stay in a rough consensus area and only make changes after the voters have had a long time to think about and approve those changes. It is much harder to get a radical government when the government’s power is split, and if all those different power-holders agree on something then the public can have more confidence about it.

Other people call it a weakness, because not only is it hard to react quickly to changing circumstances, the voters have a hard time assigning responsibility for the good and bad results of the government’s policies. If they don’t know who gets the credit and who gets the blame, they can’t be sure of who to re-elect and who to get rid of.

I have my own opinions, which I’ve shared before and which I’ll probably share again when I look at the UK’s latest efforts for Lords reform. But for now I wanted to get this stuff down for future reference and invite your thoughts on that opening question: Should government officials be trying to do what the people want them to do, or do they have a different kind of responsibility?