August 5, 2010

A lot of people are talking about George Packer’s article on the Senate in the current issue of the New Yorker. I think it’s an ok article; George seems to have a better handle on Senate procedure than most of the DC press corp, although he still doesn’t seem to understand how the filibuster, holds, and unanimous consent are structurally all the same issue, and therefore his reformist position seems a little shaky to anyone who does fundamentally understand the issues. (Case and point: an obsession with “secret holds,” which also plagues the DC press corp, is a pretty good sign that you’re not quite wearing the right glasses yet). On a couple of occasions, he also mistakes the changing shape of partisanship for an increase in partisanship, for instance when he talks about how in the 60’s, the minority leader and majority leader often worked together to break filibusters. Well, that’s because the minority obstructionists were southern democrats hostile to civil rights, members of the majority party. The majority coalition in most filibuster situations was the northern democrats and the GOP. Amazingly, he writes several paragraphs later about how most of the civil rights act of 1964 was written in minority leader Dirksen’s office, but fails to see how the notion of party didn’t really apply in the case of 60’s civil rights battles. It wasn’t a partisan issue.

But leaving all that aside, the thing that irked me most about the article was Packer’s understanding of deliberation. He promotes what I like to call the “naive liberal” version of deliberation, which is roughly this: deliberation is the process of everyone getting into a room and talking things out, listening to each other’s arguments, convincing people of the rightness of a position, and then seeing whose arguments carry the day. Of course, when you believe in that version of deliberation, the Senate looks like a pretty non-deliberative place. As Packer says:

The Senate is often referred to as “the world’s greatest deliberative body.” Jeff Merkley, a freshman Democrat from Oregon, said, “That is a phrase that I wince each time I hear it, because the amount of real deliberation, in terms of exchange of ideas, is so limited.” Merkley could remember witnessing only one moment of floor debate between a Republican and a Democrat. “The memory I took with me was: ‘Wow, that’s unusual—there’s a conversation occurring in which they’re making point and counterpoint and challenging each other.’ And yet nobody else was in the chamber.”

Tom Udall, a freshman Democrat from New Mexico, could not recall seeing a senator change another senator’s mind. “You would really need a good hour or two of extensive exchange among folks that really know the issue,” he said. Instead, a senator typically gives “a prepared speech that’s already been vetted through the staff. Then another guy gets up and gives a speech on a completely different subject.” From time to time, senators of the same party carry on a colloquy—“I would be interested in the distinguished senator from Iowa’s view of the other side’s Medicare Advantage plan”—that has been scripted in advance by aides.

Under this view, the Senate is broken because no one is listening to anyone else anymore. But the problem is that  this is nothing new: Daniel Webster famously said that he couldn’t remember a single time he gave a speech in the Senate that actually changed anyone’s vote, and he was playing to packed crowds and huge galleries, hanging on his every word for 4 hours speeches.

But the large point is this: the naive liberal version of deliberation is not the most important, or even a correct,  understanding of deliberation in the legislative context. If deliberation is to mean anything in legislative politics, it needs to mean this: when one person proposes an idea, if someone else has a better idea that more people will like, the better idea should win the day. In effect, if you have a bill you want to pass, but I have an amendment that the majority thinks would make the bill better, then my amendment should be incorporated into the bill. That, in legislative life, is deliberation: a new idea having the chance to be voted on to replace an old idea, and actually replacing the old idea if the majority likes the new idea better. Normatively, this is what we want: people continually propose modifications to law, and the legislative output iteratively develops to ultimately match the will of the majority.

And when you come around to that version of deliberation, all of a sudden the Senate does begin to resemble the world’s most deliberative body. Generally speaking, amendments cannot be restricted on the floor without unanimous consent; anyone who thinks they have a better idea is guaranteed a vote on that idea to see if the majority agrees with them. No one can get their own idea passed into law without the possibility of a better idea replacing it. This is the essence of the Senate at its best — there’s no way to lock the place down  and ram through your ideas, if the majority wants a different idea. (Of course, this does not address the most often-cited flaw of the  Senate — that the filibuster allows the minority to lock down the place and prevent any idea from getting through that the bare majority wants. More on this later).

But wait, in what batshit-crazy legislature would they allow the opposite — ideas getting passed into law that a majority wants to, but can’t, amend with better ideas? Oh wait, that’s the United States House of Representatives! In the House, the majority can write restrictive rules of debate for individual bills, rules which state what amendments  are and are not allowed to be voted on. The majority leadership routinely uses special rules, held together by partisanship and punishment for dissenters, to eliminate the possibility of popular amendments altering the leadership’s ideas in any way. This isn’t an occasional thing, either — the vast, vast majority of important legislation goes through the House under a special rule, and a large percentage of the time there is a plausible amendment out there which would have majority support in the chamber, but cannot be proposed because the leadership has excluded it from the special rule, and has held together the majority party on the special rule vote through carrot and stick tactics with the backbenchers. And this has been a recent development. Even as recently as 30 years ago, most important bills came to the floor under open rules, or at least allowed a wide variety of amendments. Now it is virtually zero.

I say this all because the general public consensus is that the Senate is broken. But if your concern is democratic deliberation, in the true legislative output sense of the word, the House is in far worse shape. And that doesn’t seem to be on the public radar at all.

The true tension in all of this is that you can’t have it both ways. You either have the House — where the leadership of a partisan majority can effectively lock out legislation that has majority support , or you have the Senate, where the minority can block legislation that has majority support. Threading the needle requires either strangely weak parties or unrealistically benevolent leaders. But my bottom line, one that you don’t hear too often outside the Capitol, is that we probably don’t want two chambers that suffer from the same problem, and that having iron-fisted leadership rule in the House and minority power in the Senate is preferable to having two of either, and probably better than having the converse. Scratch that, definitely better than having the converse.


7 Responses to Deliberations

  1. Matt on August 18, 2010 at 4:18 am

    Thanks for the trenchant critique of the Packer article. I too found the article flawed in many respects, in both big ways (e.g. using Caro’s history of the Senate as gospel) and small (getting Sarah Binder’s academic credentials wrong — she’s a political scientist, not an historian, and I’m sure she herself would concur). Given Packer’s reputation, it was a real disappointment.

    I’m not sure that the view of deliberation you call “naive” is all that naive — John Stuart Mill used the same definition, and Mill was deeply skeptical that a legislature could effectively do much else *besides* deliberate (“a numerous assembly is as little fitted for the direct business of legislation as for that of administration”, Representative Government, 1861).

    A stronger case can be made, I think, that the Senate’s greatest problem is not a lack of “naive liberal” deliberation but the ability of individuals (or a minority) to block legislation entirely. The Senate could become a more majoritarian body by removing such things as holds, the filibuster, etc. yet still keep its freewheeling rules governing amendments — and thus still retain the sort of deliberation you discuss.

    Incidentally, though the House did have fewer restrictive rules before the 1970’s, it also allowed amendments in the Committee of the Whole to be approved by a minority of its members (via teller votes). So it was arguably no more “deliberative” then than it is now.

    • admin on August 18, 2010 at 8:21 am

      Yeah, I suppose that “naive liberal” is not a good choice of words — I was merely thinking of all the times I’ve heard academics bemoan the lack of deliberation in Congress (or society) in that definition of deliberation.

      I suppose a better choice would be “jury deliberation,” since that’s an actual place in which the “talk it out” version of deliberation (as opposed to the “amendment” version) is used. And it might be a more clear comparison that way, too, since the differences between a jury’s decision-making job and a legislature’s are pretty obvious.

      How did the teller votes allow minority amendments? I wasn’t aware of that.

      • Matt on August 18, 2010 at 8:16 pm

        I like “jury” deliberation; “town hall” deliberation might be another way of describing it. Hey, let’s all get together and talk things through! Won’t that be great? Kumbaya and all that…

        It’s not that teller voting allowed minority amendments; those were permitted by the general use of open rules. What I meant is that, on a teller vote, less than a majority of the full House could pass (or reject) an amendment. One of the criticisms of teller voting, in fact, was that significant amendments were sometimes adopted by a vote of far less than the full membership (often 100 or so members voted — the minimal quorum in the Committee of the Whole — and sometimes fewer). So if “deliberative” is defined as a majority of the *full chamber*, the House was usually no more deliberative before the 1970’s than it is today.

  2. Tom on September 16, 2011 at 2:47 pm

    An excellent post. Having read “The Broken Branch” (Ornstein and Mann) and “Stalemate” (Binder)I’d come to think it was a big problem. However, there I do agree with Matt that “jury deliberation” is important in terms of making policy.

    Any ideas on how to increase the amount of jury deliberation or why there is not more of it? (this is related to my question of why legislators don’t spend more time trying to educate their constituents)

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