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03/07/2010

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Roger Chittum

If we should be reluctant to adopt by a simple majority a program that polls say a majority of the electorate does not like, why would it be more legitimate if adopted by a supermajority of equally out-of-touch Senators?

If Posner's idea is that the bill will be amended to be more "moderate" because of the supermajority requirement then we need the proof, or at least the argument, that a more "moderate" bill would be favored by the electorate. In fact, the opposite seems true of health care--Massachusetts voters disliked the pending bill because it lacks a public option and other provisions to make health care more affordable.

Taking the supermajority idea to the extreme, I think we can all agree that if the votes of 100 Senators were required, only a bill that was totally trivial and/or a total travesty of internal contradictions and earmarks could get passed. In California every summer we have the most nauseating deals made to buy the last vote or two to pass a budget. I submit supermajority requirements tend to make legislation less workable, more expensive, and special interest friendly while simultaneously diluting legislator responsibility and accountability. We don't get better legislation, we get worse legislation, and legislators earn voter contempt in the process.

I think there is merit to the idea of a supermajority requirement that gets smaller over time. One proposal is that the first cloture vote would require 60 votes, the next one 55, and after that only 51. That would serve the purpose of cooling the so-called cup of House passions in the Senate saucer for a while, not that you really need a supermajority to do that. The California Assembly and Senate have historically been brutal to ill-considered bills from the other house.

Tom Rekdal

Judge Posner provides an admirable summary of the filibuster. But quite apart from the merits of any particular decision rule, there is the intractable problem of restraining Leviathan by constitutional rules of any kind. If they are written, they can be reinterpreted; if they are merely conventional, they can be abolished, circumvented, or simply ignored. It all depends, as Judge Posner points out, on how unified and determined the coalition seeking to alter the status quo may be.

In the present case I am inclined to think that the party structure may be the decisive restraint (if there is to be one). Most political incentives are still local, not national. It is amazing to me that the President's health care proposal has fared as well as it has, given the public opposition and the President's limited ability to sanction party defectors.

Nicholas

"it benefits all Senators": ergo, it benefits none. Unless Posner refers to benefits of Senators vis-a-vis Representatives. So, that disposes of one of Posner's "reasons".
Then Posner merely discusses the reason why filibuster has been risen to prominence again--provoking him and Becker. There is no compelling argument provided by Posner for keeping or abolishing the filibuster. After both Posner and Becker have treated this element of congressional procedure, the simple fact remains that it is anti-majority (I won't say anti-democracy because they cannot be equated), a queer trump card for the minority to play when it deems a bill important enough. Insofar as one thinks that the majority should rule (the reason for this is to avoid violence) the filibuster should be abolished. Since people are never sure whether they'll be in the majority, there is always lack of resolution to withdraw that trump card from the deck.

Gary_L_Kaplan

While acknowledging that representatives are expected to exercise judgment, Judge Posner nonetheless concludes that enactment of health reform legislation would "raise a valid question about the representative character of Congress." The premise of the questioning, though, seems to be that the legislation has been "kicking around for a year" and it is now seemingly unpopular with the electorate. This argument, I think, is problematic on few levels.

First, despite the persistent sound bite that the legislation is being "crammed down the throat of the public," the evidence is far less clear. A Feb. 26-28 McClatchy/Ipsos poll, for example, found that 47% of the 1076 respondents didn't like the current health care proposal. More than a third of the opposition to the legislation, though, believed that it did not go far enough. Barry Sussman notes that this implies that "the overall numbers switch to 59 percent in favor of health care reform, 30 percent against." http://bit.ly/cGnuVO. (He also notes that 57 percent, said they knew “not very much” or “nothing at all.”) As has become increasingly clear, polling results now commonly depend more upon who is doing the polling, than public sentiment.

Second, public opinion is not static. Had there been a referendum on health care reform as part of the 2008 election, the results would likely have been quite different than a referendum today. It is neither irrational, nor inconsistent with the representative nature of Congress, for members today to conclude that by the time of the next election (which presumably provides a better benchmark of public opinion than the polls) public sentiment will change (assuming that it is, in fact, presently hostile to the legislation).

Third, a bias favoring the status quo (implicit in requiring a super majority) implies that the risk of action is inherently greater than the risk of inaction or that a prior determination (such as a constitutional enactment) merits deference. Neither condition likely applies to health care. In the past year, health care costs as a percentage of GDP have increased from 16.2 to 17.3 percent, adverse selection has led to well-publicized insurance premium increases of 20 percent or more, and the number of uninsured has grown to more than 48 million. There is no evidence suggesting that such numbers will improve or stem entirely from a self-correcting business cycle. Likewise, the present system -- or, more accurately systems, when one considers the differences among medicare, private insurance, VA/IS, FEHA, etc.--arose far more from historical circumstance than any reasoned decision-making.

Lastly, the cloture rule itself raises valid concerns about the nature of Congress. Judge Posner explains that filibusters long preceded the U.S. constitution and, as Senator Lieberman pointed out in 1995 before his apparent change of heart, "“[t]he Constitution states only five specific cases in which there is a requirement for more than a majority to work the will of this body: Ratification of a treaty, override of a Presidential veto, impeachment, adoption of a constitutional amendment, and expulsion of a Member of Congress. In fact, the Framers of the Constitution considered other cases in which a supermajority might have been required and rejected them. And we by our rules have effectively amended the Constitution—which I believe, respectfully, is not right—and added the opportunity of any Member or a minority of Members to require 60 votes . . . .” [141 CONG. REC. 642 (1995)].

As also noted, Senators have little incentive to change the rule, and its is hard see anyone else who would have standing to challenge it. Might this not be a more significant question about the representative nature of Congress than passage of health reform by a majority?

Gary L Kaplan

While acknowledging that representatives are expected to exercise judgment, Judge Posner nonetheless concludes that enactment of health reform legislation would "raise a valid question about the representative character of Congress." The premise of the questioning, though, seems to be that the legislation has been "kicking around for a year" and it is now seemingly unpopular with the electorate. This argument, I think, is problematic on few levels.

First, despite the persistent sound bite that the legislation is being "crammed down the throat of the public," the evidence is far less clear. A Feb. 26-28 McClatchy/Ipsos poll, for example, found that 47% of the 1076 respondents didn't like the current health care proposal. More than a third of the opposition to the legislation, though, believed that it did not go far enough. Barry Sussman notes that this implies that "the overall numbers switch to 59 percent in favor of health care reform, 30 percent against." http://bit.ly/cGnuVO. (He also notes that 57 percent, said they knew “not very much” or “nothing at all.”) As has become increasingly clear, polling results now commonly depend more upon who is doing the polling, than public sentiment.

Second, public opinion is not static. Had there been a referendum on health care reform as part of the 2008 election, the results would likely have been quite different than a referendum today. It is neither irrational, nor inconsistent with the representative nature of Congress, for members today to conclude that by the time of the next election (which presumably provides a better benchmark of public opinion than the polls) public sentiment will change (assuming that it is, in fact, presently hostile to the legislation).

Third, a bias favoring the status quo (implicit in requiring a super majority) implies that the risk of action is inherently greater than the risk of inaction or that a prior determination (such as a constitutional enactment) merits deference. Neither condition likely applies to health care. In the past year, health care costs as a percentage of GDP have increased from 16.2 to 17.3 percent, adverse selection has led to well-publicized insurance premium increases of 20 percent or more, and the number of uninsured has grown to more than 48 million. There is no evidence suggesting that such numbers will improve or stem entirely from a self-correcting business cycle. Likewise, the present system -- or, more accurately systems, when one considers the differences among medicare, private insurance, VA/IS, FEHA, etc.--arose far more from historical circumstance than any reasoned decision-making.

Lastly, the cloture rule itself raises valid concerns about the nature of Congress. Judge Posner explains that filibusters long preceded the U.S. constitution and, as Senator Lieberman pointed out in 1995 before his apparent change of heart, "“[t]he Constitution states only five specific cases in which there is a requirement for more than a majority to work the will of this body: Ratification of a treaty, override of a Presidential veto, impeachment, adoption of a constitutional amendment, and expulsion of a Member of Congress. In fact, the Framers of the Constitution considered other cases in which a supermajority might have been required and rejected them. And we by our rules have effectively amended the Constitution—which I believe, respectfully, is not right—and added the opportunity of any Member or a minority of Members to require 60 votes . . . .” [141 CONG. REC. 642 (1995)].

As also noted, Senators have little incentive to change the rule, and its is hard see anyone else who would have standing to challenge it. Might this not be a more significant question about the representative nature of Congress than passage of health reform by a majority?

Gary L Kaplan

Sorry about the double post.

Jim

Some might argue that the more restraints there are in place to impede the saliva and lava flow of activist legislation, the closer we stay to a constitutional republic as opposed to a democracy in which there is the tyranny of the majority vote. After all, if legislation were effective and efficient, there would be a need for less of it.

Brian Davis, Austin, TX

Gosh, I guess I could look it up (in all my spare time), but maybe somebody will know what the Senate's filibuster rule or custom was in the pre-Civil War era. I can't imagine the Missouri Compromise having passed without some Senators talking a long time. They say Strom Thurmond held the modern record. The 60-vote rule to suspend regular order or move to a vote in the Senate works well with or without the courtesy of the filibuster. Thinking back to the years when George Mitchell and Bob Dole split majority leadership, I can't remember many real filibusters. You either have the 60 or you don't. The Senate's still capable of operating with class and statecraft instead of blind partisanship. I don't like major legislation turning on a bare majority any better than a 5-4 Supreme Court decision. Either kind sets itself up for its own fall when the names and faces change a little.

Jack

There are two tensions at work here and both were faced by our founders who got it close to right.

One is the familiar tension between the will of the majority and the wisdom of our elected, full time, representatives having the advantages of staff, the ability to summons panels of experts and stakeholders and debate.

The other is that of state's rights vs the federal government. As the founders had to try to create a federation in a time of division on the issue of slavery they may not have gotten it quite as right; but here we are with the deal that was struck.

Much has been made of the popularity of the H/C bill, but it seems that hurdle has been crossed by broad support of the even stronger bill that included the public option that should have a desirable cost compression effect, by Representatives each of which will face their electorates and challengers in a few months. As the founders decreed, the bill passes on a simple majority with the blessings or anger of the citizenry to be expressed at the ballot box in nearly a "one man one vote" procedure.

Before moving on to the Senate, perhaps a reflection on issues that were not popular or passed by the House. Slavery itself, as the "gag rule" was passed in 1837 automatically tabling discussion and petitions signed by 10's of thousands. As late as after WWII a refusal to integrate our military.

The Voting Rights Act of 1965 passed first in the Senate with strong leadership from LBJ. And perhaps as it benefits, primarily, a small minority it sheds some light on the "lack of popularity" of H/C reform in that 80% have some form of "coverage" and likely fear that extending benefits to the "uncovered" 20% will cost them money or other losses.

As pointed out in Gary's thoughtful post above, on the H/C bill even a bare one vote majority in the Senate is backed by far more citizens favoring than opposing. But, that's not quite the point as the Senate is where protection of "state's rights" comes to the fore.

Even to me, as I foresee the need for more nationwide conformity on banking and insurance regulation there's something noxious about the idea of every citizen being forced into the maws or our FOR PROFIT "insurance" companies even as it's subsidized and seemingly more beneficial for lower incomes and lower income states that will gain some of their subsidies from donor states like NY, CA and others.

So, H/C being a civil matter of financing, not at the level of voting rights or secession, rather than having the majority held up by "state's rights", extreme partisanship, or being perhaps in the pocket of the "insurance" industry with the likes of Sen Lieberman, why not try to pass the better bill with the public option and with an option for states to opt out?

I doubt that any would opt out as the states whose Senators are most opposed have higher numbers not covered, more below the poverty line, and higher percentages in rural areas that are particularly poorly served under the status quo and pay in less tax revenue than they receive in federal benefits.

Jim

Jack, "the wisdom of our full time elected representatives"? You must be joking.

In addition, the elephant in the H/C room is almost never mentioned; The patients are the ones who will be worse off. The demand for care will go up, the supply down. More care will be given by less qualified people, communication will suffer and a two or three tier system will emerge. Physicians, hospitals and insurance companies will do well. The patients will not.

Recently, I had to interact bigtime with the medical care system in a strange location and I kept a diary of my multiple contacts. Even though the technology was good, the coordination and communication was atrocious and difficult for me to navigate and I am a physician.
Pity the poor patient who takes all of what happens at face value.

Yes, the insurance and pharma guys are greedy and unhelpful but be careful what you wish for. After all, my view of politicians is that they are not like thieves who steal and carry their loot off. They are more like cockroaches, it's what they fall into and mess up.

As always, your posts are thoughtful and well expressed. Occasionally I disagree with your perspective.

Jim

Jack, to illustrate my point:

Bubba Had Shingles. Those of us who spend much time in a doctor's office should appreciate this! Doesn't it seem more and more that physicians are running their practices like an assembly line? Here's what happened to Bubba:

Bubba walked into a doctor's office and the receptionist asked him what he had. Bubba said: 'Shingles.' So she wrote down his name, address, medical insurance number and told him to have a seat.

Fifteen minutes later a nurse's aide came out and asked Bubba what he had..
Bubba said, 'Shingles.' So she wrote down his height, weight, a complete medical history and told Bubba to wait in the examining room.

A half hour later a nurse came in and asked Bubba what he had. Bubba said, 'Shingles..' So the nurse gave Bubba a blood test, a blood pressure test, an electrocardiogram, and told Bubba to take off all his clothes and wait for the doctor.

An hour later the doctor came in and found Bubba sitting patiently in the nude and asked Bubba what he had. Bubba said, 'Shingles.' The doctor asked, 'Where?'
Bubba said, 'Outside on the truck. Where do you want me to unload 'em??'


Jack

Jim, Thanks; and I winced a bit myself as I wrote "the wisdom of our full time elected representatives?" But I was writing about the process designed by our wise founders that SHOULD parse and refine the political inputs of our citizens through our elected representatives.

At the local level I've seen good process produce more wisdom than that of any one participant and that the Congress could work even if the Reps were average men and women of good intent. What has gone tragically wrong is that we failed to make the transition from town hall and free stages to moving into the electronic village. When radio began and even more importantly TV we should have dedicated some small percentage of OUR broadcast airwaves to "town hall" for the serious discussion of public affairs required to run a democracy and for the free use of those campaigning for elected offices.

The problem being that of making our?? candidates vulnerable addicts for campaign dollars and none worse than the Senate where they have to raise huge sums and are in position to take money from special interests across the nation......... and beyond. So that obtuse, tone deal "ignorance" you see is far more likely to be the result of campaign funds than a lack of understanding the issues as we see with the millions funneled by our insurance parasites on the H/C issue.

Consider: If as morally and intelligently must be the case, we are ALL in the medical risk pool, we can and should get rid of the entire "insurance" function with its clever cherry picking of profitable sub-groups.

Well the issue here is the 60 vote majority for which Posner and Becker make good arguments for positive benefit. But, combined with the seniority system it also creates the unwarranted power wielded by say a Jesse Helms of NC (2.5% of the population) on foreign affairs and wretched policies on the AIDs pandemic, and the pork ladling power of Ted Stevens of our small state and Sen Byrd of WVA.

http://en.wikipedia.org/wiki/Jesse_Helms#HIV_legislation

Ha! You sum up well the problems of our existing patchwork H/C system: "Even though the technology was good, the coordination and communication was atrocious and difficult for me to navigate and I am a physician." Yes indeedy! And it must be frustrating to be in a crumbling building that's being "reformed" on the fly by a combo of pols, public opinion and stakeholders trying to maintain their traditional stake. But! the time is here and something MUST be done!

second opinion

The current situation means that you effectively need 60 votes to pass a law. You can now argue in favor or against this requirement of a supermajority but the requirment should be written in the constitution. By his procedures the US-Senate has de facto changed the constitution without being entitled to. I don't think this is a good situation.

Concerning the supermajority: I don't see why it should be necessary. You already need three independently elected entities to agree on a law before it comes into effect. I think there are not that many countries that afford that. One pretty old democracy the one of the United Kingdom has only one Parliament and though that system has been coined an “elective dictatorship” this does not necessarily mean that it is bad.

Jack

Chris: We might have a bit of an apples and oranges problem here.

Most of my comments are directed toward public policy not personal choices. Perhaps it's worthwhile pointing out that "blacks" and various minorities or new immigrants, and not so long ago, women, have asked for is not "integration" but "desegregation". There's a not so subtle difference between the two terms. That is to have equality of opportunity and equal standing in the public sector and the market place, both of employment, housing and other sectors of the market place.

I'm not familiar with either of your studies, but I have seen a computer model in Scientific American that tended to support your claim; that is that if the black icons held even a slight preference for each other over the whites, a few generations created a pattern that looked like "segregation". Of course it was not, as there were no rules of segregation, only an affinity. This one is truly a threat to what was once America.

Humankind, of course operate on many channels, so as we experienced in our youth, the "lines" began to blur with our going into a blues or jazz venue in which we were the small minority, and where any "black-white" friction was largely overridden by something like "Hey if the skinny white kid paid his $10 to come see Ray Charles, he's probably OK and welcome." Perhaps more than welcome for having come to see one of their tribe excel, and as surely they'd see the hated lines of segregation that were so restrictive to an oppressed minority begin to blur. Had I become a musician, or an athlete in that era the "lines" would have blurred even more as both a result of my free choice (and theirs) and desegregation laws that opened venues for "black" musicians and athletes.

It does not matter much to me, nor, I'd suggest, the founders if there are private or religious affinity groups, but when our society acts in the public sphere in a prejudicial manner and does not hire or reward the best for a job or high office, we've undermined our (claimed) meritocracy and weakened our nation.

In my view, once the laws have been changed, and a few decades of affirmative action have partially made up for centuries of oppressive action, the "conflict and inequality" you mention will wear away over time like the sharp edges of various shapes and colors of stones by wave action at the beach. Surely you've seen these effects in the years since the "civil rights" era, both as we see "blacks" in many positions of honor and as the appearance of one "black" at a party is not the suspected tokenism that might have been the case in the 70's.

"Class conflict" that was nearly non-existent in the 50's after rich and poor largely fought side by side in both WWI and WWII, and the GI bill sent many to our top Ivy colleges, but it's rapidly becoming a problem today and one in which most "conservatives" ignore even as the redistribution of the last 40 years has dramatically increased wage and wealth inequality to the point that it IS one of the major drags on our entire economy. It's fairly easy for today's industry to ramp up production w/o adding many workers or much overhead, but THE problem is becoming that of trying to sell to a middle class that simply no longer has the discretionary income to participate.

http://lanekenworthy.net/2008/03/09/the-best-inequality-graph/

JFK spoke of a "rising tide that lifts all the boats" but in recent years our doubling of per capita productivity has largely lifted ONLY the yachts. Won't work. Sooner or later the dysfunction of the middle class will destroy our standard of living and negatively affect the top few percent as well. If we are not to become "Mexico" we have to address the growing inequality and the wealth creamed off by the financial sector that is not adding value or wealth. This one is truly a threat to once was America.

Jack

Whoops! Somehow "This one is truly a threat to what was once America." ended up at the end of my second paragraph where it does not belong!

Chris Graves

Jack, I just found your reply over here on the Posner post. Thanks for the reference to the study discussed in Scientific American. That is the kind of thing I am talking about. The studies that are emerging from a number of sources are finding that too much diversity leads people to withdraw from public life. I am reluctant to post links on here since at times the entire post including links has been blocked. Here is a link to an article introducing Robert Putnam as it offers a summary of his research in this area. Links to the study that I am referring to as well as his other writings on social capital are listed at the end of the article. The Putnam article first published in *Scandinavian Political Studies* is the one that finds that diversity leads to fragmentation and social isolation.

http://www.infed.org/thinkers/putnam.htm

Here is another article written by James Q. Wilson providing critical commentary for Putnam's solution to the problem of diversity leading to social disintegration:

http://www.commentarymagazine.com/viewarticle.cfm/bowling-with-others-10936

As for inequality of income in America, one reason among many others for this increase in inequality is the use of income and wealth as a proxy for racial discrimination. As David Brooks has observed when the Civil Rights laws passed, the whites said to themselves, "We will just out-compete them," viz. the minorities. Hence, people made greater efforts to use income differentials to re-segregate racially.

Finally, on this issue, I do not see the United States being a meritocracy although I would like for it be just that. When liberty is the predominant principle governing a society, then the resulting distribution of income and honors do not necessarily follow any predictable pattern as philosopher Robert Nozick observed. As he put it, "liberty upsets patterns." So, we have very talented people rising to the top of the income and social ladder, so to speak. And we have people with mediocre ability but with a lot of drive and chutzpah rising to the top. We also have well-connected people gaining influence as we do in any system that has been tried. The social "order" that has evolved in the U.S. in the past few decades has turned out to be a depersonalized aggregation of hyper-aggressive boors who have no culture or little decency with no sense of place or continuity with past generations. For example, just consider the quality of celebrities that we have produced in recent years with the people the popular culture venerated in past generations--e.g., Brittany Spears or Madonna compared with Enrico Caruso or Sarah Bernhardt. Also, consider Bill Bennett's leading indicators of moral decline.

http://www.columbia.edu/cu/augustine/arch/usadecline.html

What we have produced in the U.S. is not a pretty picture nor a pleasant place to live. I have no interest in perpetuating the cesspool that we have sunk into. I blame all political stripes for the disaster that we are currently mired in including conservatives who seem to think conservation of our heritage involves the preservation of the liberal-leftist goals of a generation ago while the libertarians strive to destroy any moral restraint as they confuse liberty with license and the left who seek even more deterioration of the pillars of our culture and organic communities with increasing efforts to level society to its lowest common denominator, which finds new lows everyday.

I am afraid that much of the decline is due to a too rapid a rise in prosperity. Perhaps, this is a natural cycle or due to Keynesian economics whose resulting policies do not demand a correspondence between saving and investment that might otherwise provide a balance between future and present consumption as the need for savings for the future encourage moral restraint and thinking through the consequences of one's action.

Greg

Does the supermajority result in vote trading/buying? Probably. Would a simple majority cause a legislator to vote more responsibly? Theoretically, yes, but with 59 democrats they would allow 8 of their membership to vote against, the free ride principle.


What is the answer, then? Answer: require a supermajority to change the rules.

Brian

If a "supermajority" is referring to a plurality, I think there are existing standards for it's use.
The root problem with a filibuster is it's definition. Relevant discussion of significant details of a proposal should be encouraged and impertinent digression should be admonished. This could be accomplished by limiting unbroken monologue to 90 minutes and fining inappropriate deviation. I feel these are rules a practical convention could conform to.

Brian

PS - I'd start with the blogs!!

nfl jerseys

Because http://www.new-jerseys.com program is unpopular among the general public, its enactment by a simple majority in both Houses would raise a valid question about the representative character of Congress. Not that a legislature should always bow to popular opinion. The theory of American government is representative rather than direct democracy

sesli chat

Some might argue that the more restraints there are in place to impede the saliva and lava flow of activist legislation, the closer we stay to a constitutional republic as opposed to a democracy in which there is the tyranny of the majority vote. After all, if legislation were effective and efficient, there would be a need for less of it.

truck rental

Abolishing? never! why? as they say: "Don't you do to your friend what's you don't want done to you!", the Filibuster should be done, but hey, make me a call before so I can get into my pajamas and have a good few nights sleep in the back of my truck :)

lower back pain

Concerning the supermajority: I don't see why it should be necessary. You already need three independently elected entities to agree on a law before it comes into effect. I think there are not that many countries that afford that. One pretty old democracy the one of the United Kingdom has only one Parliament and though that system has been coined an “elective dictatorship” this does not necessarily mean that it is bad.

Emma

I added Google Reader to your site when I have spare time try to follow.Thank you.

skincare

And it must be frustrating to be in a crumbling building that's being "reformed" on the fly by a combo of pols, public opinion and stakeholders trying to maintain their traditional stake. But! the time is here and something MUST be done!

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