Saturday, October 12, 2013

Unconstitutional practices in both houses

Majority rule is constitutional. Minority rule is not.

We have been through the sorry spectacle of the Senate being held hostage by a minority of its members, via the filibuster and other "rules". Indeed in much of its business, a single senator may "hold" action indefinitely. It is thus not only a dysfunctional, but also an unconstitutional, body. Much of this derives from the wish of each member to be a prima dona and mini-president, but for the institution as a whole and for the country, it is a disaster.

The current Republican hostage-taking over Obamacare, "spending", and the misunderstood debt puts a spotlight on the same phenomenon in the House of Representatives, where a straight vote would pass both the budget and the debt ceiling, but the Republicans deny such a vote due to their "Hastert rule", which renders the House both dysfunctional and unconstitutional. This self-imposed rule uses the procedural powers of the speakership to deny any bill a vote unless it has majority support of Republican members. Not a majority of the House at large, but only of the Republicans.

The founders didn't even think it worth mentioning in their masterwork- the constitution- that each legislative body would pass bills based on a majority vote. It was so blindingly obvious and implicit that only a dolt would imagine that other rules might be brought into play. But here we are.

What the constitution does say on the matter is:
"Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law."
"Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member."

Here, as in only a very few other cases, super-majority requirements are mentioned, clearly because it is so rare relative to the default case of majority rule.

It is unimaginable that the founders would have accepted the kind of "rules" or proceedings that both the Senate and House have since lashed themselves to, requiring special or super-majorities for any action but those explicitly mentioned in the constitution. They were opposed to party politics in any case, but to see our great deliberative bodies so hamstrung not only by partisan rancor, but by insidious "rules" by which partisan minorities can stifle public action, would be most maddening. The constitution they constructed already had so many divided powers, elite-friendly voting mechanisms, and brakes on precipitate action that this extra degree of dysfunction is, frankly, sadomasochistic. Or sclerotic, take your pick.

Imagine if the House leadership decided on a rule that Speaker Boehner gets one vote and all others get none. They can make their own rules, right? That would certainly simplify matters, and even promote expeditious decisionmaking. The bounds on these internal Senate and House rules seem to be whatever they can get away with without raising too many suspicions of unconstitutionality. And their point is generally to give power to the powerful, instead of promoting deliberation and the equal distribution of power in what were clearly constructed to be one-man one-vote bodies.

We need to find a way out of this mess. The Republican party may be doing the nation a favor by immolating before our eyes, thus perhaps losing the next election. But a more durable way to address these legislative dysfunctions might be for the President or others with standing to take the matter to the Supreme court and have them put some bounds on the internal procedures with which the congressional bodies can steal the rights of the majority. Even within the now-rabidly conservative court, the clear intent of the founders should not pass completely unnoticed.

Alexander Hamilton, in Federalist #78:
"If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority"

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  • Smart or dumb? Either way the contemporary right is toxic.
  • Is something wrong at the Fed?
  • The devil is still about, and wilier than ever!
  • Democracy for sale.
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  • Newt led the slide in our political system to terrorism.
  • Mariana Mazzucato- is the economic ship starting to turn?
  • Swiss basic income proposal.. better to have guaranteed income, or a guaranteed job?
  • Annals of the easily led: how FOX|RUSH operates like a religious cult.
  • Economic and/or political quote of the week, from Bill Mitchell, quoting Mason Gaffney:
"... the American education system had been corrupted especially in the era of secret ballot and direct democracy where 'voters could no longer be bought … they had to be brainwashed' and the device chosen was 'Neo-classical Economics, which blurred all distinctions between producers and rentiers'."


  1. Burk, thanks for this. It's heartening to see that someone out there recognizes that the problem is deeper than what the 24-hr news outlets would lead us to believe (if only Boehner would allow the vote, if only the Reid would allow the vote, if only...).
    But we've let ourselves be fleeced. For whatever reason, we buy in to the bipartisan vitriol and allow it to polarize us over trivialities - hence the Tea Party is elected in with no real goal other than to undo what was previously done, or the Republicans shout about the evils of abortion while letting the social safety nets of the country fall to pieces, and the Democrats prattle on about how terrible the Republicans are, while they to allow defense spending to increase without oversight. Everybody inside the system is at fault, but nobody outside the system can see the problem is, in fact, the system and not specifically those within it.
    But what do you do? We're supposed to be able to toss out our government if it doesn't suit us, but nobody knows how anymore. Perhaps we've even let it get too big to be dealt with at all.

  2. Hi, Kelly- I feel for your exposure during the shutdown. Many good things are going undone. Like economic statistics, for instance. Anyhow, we live in a two-party system, dictated by the electoral structure of majority rule. That means that we always choose one of two, not an ideal of what would be best or what we want best. And right now, the Democratic party is clearly the better choice. In California, the Republican party is fully irrelevant, have become a toxic brand a decade ago and not even managing a 1/3 proportion in the senate where that would be enough to block tax measures. And the state is suddenly well-run, able to deal with our budget and other issues.. no shut-downs, no crises, no problem. I see that as a distinct possibility nationally as well- the resumption of a period of strong Democratic ascendency. The Republicans still form a useful opposition, but as long as they are fixated on false issues and demographic bitterness, they can never get traction.

    But back to the structural issues. We are seeing tremendous sclerosis at all levels. In the long view, this is probably a natural part of being a declining culture, at least in relative terms. We fight over what we have left, and most of what we have left is spoken for by networks of incumbent interest. Why haven't residential internet speeds increased in a decade? A total private-public partnership in sclerosis. Why is all our infrastructure crumbling, even while millions of able hands are idle? The institutional masochism of the Congress is one part of that- keeping the incumbents happy, taking unseen shares of power from the less powerful. Another is the fixation on the federal debt- a total canard that destroyed our (the intellectual class, and the elites, and congress) ability to do effective fiscal policy during the crisis, after the banks had all been tucked into bed with a kiss.