Democracy and the Senate

Both the Boston Globe and the New York Times today run stories on the fate of health-care reform in the event that Republican candidate Scott Brown defeats Democrat Martha Coakley in tomorrow’s special election for the U.S. Senate.

In light of that, I want to address the notion that it would be somehow undemocratic if the House could be persuaded to pass the Senate bill, thus avoiding a return trip to the Senate, or if a compromise measure were rushed through before Brown can be sworn in.

First, let’s look at the composition of the Senate itself. Even if Brown wins, the Senate will comprise 59 Democrats or their allies and 41 Republicans. Only in the upside-down world of the modern Senate would that be considered anything less than an enormous advantage.

What gives the Republicans clout, of course, is their unprecedented strategy of filibustering vote after vote. As Paul Krugman recently noted, a study by the political scientist Barbara Sinclair found that the routine filibuster is a very recent phenomenon, and entirely Republican in origin.

If the Republicans are going to insist that 60 votes are needed to get anything done, then rules reform ought to be the first order of the day. My preference would be an insistence that filibusters be carried out the old-fashioned way, Jimmy Stewart-style, on the floor of the Senate. Harry Reid could play Lyndon Johnson, forcing everyone to stay in the chamber until human biology brought an end to the charade.

My second point is that we tend to forget what a distorting effect the Constitution’s two-senators-per-state rule has with regard to whose voice gets heard. I ran some numbers a little while ago; in states with one Democrat and one Republican, I awarded half the population to each. Using that formula, I found that Democratic senators represent 196 million Americans, and Republican senators represent just 110 million.

Thus the Senate’s 60-40 margin in favor of Democrats would widen to 64-36 if the one-person/one-vote rule were followed. And a Brown victory would barely affect that margin, as it would be 63 percent to 37 percent.

There’s no question that a Brown victory would have an enormous psychological effect. It’s hard to know whether congressional Democrats would push something through in order to put health care behind them once and for all, or if they would decide instead to give up on the whole effort.

But that’s a matter for another day — perhaps Wednesday.

48 thoughts on “Democracy and the Senate

  1. Bob Gardner

    If you want to see how the Senate can pass legislation without a 60-40 majority, watch what happens when the estate tax break is due to expire. That’s the end of this year. right?

  2. huh?

    not about health care issue, Dan, but this deserves comment. joe fitzgerald waxes rhapsodic over scott brown in today’s herald, fine. but shouldn’t he be asked to explain what this line means? if she has one black elected official, why does she need another one? do “they all look alike” to Joe?

    “And speaking of associations, why does she need Barack Obama when Deval Patrick’s already here? OK, that’s rhetorical.”

  3. Steve Stein

    Small correction – the composition of the Senate (without Kirk, before the MA election) is 57D, 1 Socialist, 1 Lieberman, and 40 Republicans.

    If Brown wins, I think the Democrats can finally kick Lieberman to the curb (read – take away his Homeland Security chairmanship). The difference between 58 and 59 votes is a lot less than 59 and 60.

    And Bob – I don’t think there are 50 votes to extend the Bush tax breaks for the wealthy, let alone 60.

  4. Harrybosch

    Senate rules are not the Constitution.

    As Republican Senator Bill Frist reminded us, the Constitution gives power to the Senate to make their own rules by a simple majority vote.

    As Republican Senator Trent Lott reminded us, the Senate can eliminate all of the foolish filibustering by a simple majority vote.

    Strange that these folks would pay more obeisance to the rules of the Senate than the Constitution itself.

  5. Chris

    I would dispute the notion that the ‘two senators per state’ rule distorts whose voice is heard; that is precisely what the House of Representatives is for.

    1. Dan Kennedy

      @Chris: Surely you know that the two-senators-per-state rule came about for one reason — the slave states had fewer (white) residents than non-slave states.

  6. Sam

    @Dan
    Don’t be a dope. Senators don’t represent populations, they represent states. The little states (NH,RI, VT which were free!) were worried about the big states running amok (All of the slave states and some of the free states). In fact the if you recall, and shame on you if you don’t, the “3/5 rule.” The 3/5 rule counted the slaves as 3/5 of person for voting (including the house representation and Electoral College).
    So, the house was disproportionately represented southern white slave owners. And the Senate provided balance.
    The Senate is existed to protect the state from the mob. It exists to maintain federalism.

  7. O-FISH-L

    The Democrats have a history of changing the rules to suit themselves on this, so nothing would surprise me. It was back in 1975 when a simple Democrat majority forced a change in Rule XXII, the “cloture rule,” decreasing the number of votes required to break a filibuster from two-thirds of the Senate (67 votes) to the current three-fifths, or 60.

    How come when Republicans considered changes in the cloture rule a few years back it was called the “Nuclear Option” but now it might be permissible for the Democrats to fiddle with it because of the Constitution and its “distorting effect?”

    It would be fantastic for the GOP going into the 2010 elections if the Dems bent or changed the rules again to ram through a health plan that polls show the vast majority of citizens, even here, don’t want. The vulnerable Dems in the Senate and House would probably never allow it though, for self-preservation if nothing else. Even supervisory liberals can see the writing on the wall.

  8. JeffC

    @Dan – No, the two-senators-per-state arrangement was to provide a counterbalance to popular representation, so that small states wouldn’t be trampled. We’re talking 1787, not 1860 here. (Not that slavery was a non-issue, but it was not the primary reason for the bicameral legislature.)

  9. The larger point is without single-payer even getting a seat at the table or even being allowed to testify during the process of the “healthcare debate,” there will be no true healthcare reform at all. Without a public option to scare insurance companies into controlling cost, nothing will change. There is so much wrong with what is going on it is infuriating. And now there are stories saying that private sector workers are going to be taxed on their plans but the unions – mostly govt. employees at this point – are exempt from the tax until 2018. The entire process is despicable and obscene.

    Unfortunately, all the Democrats are doing is passing on RomneyCare to the rest of the country, without any true controls over cost, price-fixing, or abuse. Most of the bills are nothing more than a subsidy for health insurance companies with a legal clause forcing everyone to subsidize insurance companies whether we want to or not. It’s the worst of all worlds.

    I speak from the perspective of someone who has lived without health insurance for many years of my life because I couldn’t afford it; as someone who has had to buy it in the “free market” for me and my family at huge personal post-tax costs; and someone who has had employer insurance, at pretty high pre-tax costs too … in other words, I speak from all perspectives. And, with that understanding, I’d rather see this thing killed then have to live under the new laws, taxes, and regulation.

  10. lkcape

    Dan’s thesis changes when the Democrats are in the minority in the Senate.

    Then, the Democrats are only exercising their God-given rights.

    That little exercise of double standard, Dan,doesn’t go unnoticed.

    1. Dan Kennedy

      @Ikcape: Free subscription to Media Nation if you can prove I’ve changed my mind about Senate filibuster rules. Go for it.

  11. Harrybosch

    “How come when Republicans considered changes in the cloture rule a few years back it was called the “Nuclear Option””

    You’ll have to ask Republican Senator Trent Lott. He is the one who coined the term.

    “but now it might be permissible for the Democrats to fiddle with it because of the Constitution and its “distorting effect?””

    As the article linked above also notes, Republicans preferred calling this strategy “the Constitutional option.”

    I can live with that.

  12. mike_b1

    @O-FISH-L: The Democrats have a history of changing the rules to suit themselves on this, so nothing would surprise me.

    You’re so right! Like when the Democrats approved the 19th Amendment, integrated the armed forces, established the country’s first financial safety net for individuals, passed major Civil Rights legislation, and so on … enacting all those pesky laws, just to help themselves.

    Meanwhile, the Republicans have accomplished … remind what the Republicans have accomplished again?

    It’s why when O-Fish and her ilk trot out polls that suggest more than half the electorate is dissatisfied with the Democrats, they conveniently ignore that more than two-thirds the electorate disapproves of the GOP.

  13. Harrybosch

    “Unfortunately, all the Democrats are doing is passing on RomneyCare to the rest of the country, without any true controls over cost, price-fixing, or abuse.”

    Not to mention a blatantly unconstitutional mandate forcing citizens, for the first time in American history, to buy something from a private company.

    Reason enough for this particular bill to go down in flames, ya asked me.

  14. mike_b1

    @Harrybosch: “…a blatantly unconstitutional mandate forcing citizens, for the first time in American history, to buy something from a private company.”

    You’re kidding, right?

    Ever been immunized?

  15. Dunque

    Sam and Jeff C. – Thanks for jumping in on this. The assertion that the structure of the Senate was put in place to assuage the slave states is breathtakingly incorrect and obviously self-serving.

    The Senate’s own history (I wonder if that counts as a source) http://www.senate.gov/artandhistory/history/common/briefing/Constitution_Senate.htm

    in fact notes that the Madison Plan, authored by James Madison of…Virginia (slave state) advocated Senate representation based upon population calculations (as you correctly observed) which would have given the large states the larger portion of representation in the Senate.

  16. Harrybosch

    “You’re kidding, right?”

    That this bill contains a mandate that, for the first time in American history, would require citizens to buy a product from a private company?

    No. I’m not.

    Feel free to correct me.

    1. Dan Kennedy

      @Harrybosch: @mike_b1 has already pointed out immunizations. Mandatory auto insurance (and, in Massachusetts, health insurance) required by the states apparently does not violate the 14th Amendment, so there’s no reason to think having the federal government impose a similar mandate would be unconstitutional. If you want to counter that no one has to drive, I will laugh ahead of time and spare myself the need to respond.

  17. Harrybosch

    Dan: There is no mandate to receive immunization, as there is no mandate that a child attend public school. There is no penalty under law for not being immunized.

    And laugh all you want, however there is no mandate that one drive either, and if you choose to do so on your own property, there is no mandate that you have insurance.

    Disappointed, frankly, that you’d simply laugh it off. But I suppose if you can’t argue against it . . .

    1. Dan Kennedy

      @Harrybosch: But there is a mandate that you have health insurance if you live in Massachusetts. And the 14th Amendment forbids the states from violating the rights of U.S. citizens. Do you think the Massachusetts law is unconstitutional?

      My point about immunization and auto insurance is that they are virtual mandates. You can’t participate in society unless you obey, especially with respect to immunization. I mean, yes, we’re all free to live in shacks in the woods somewhere, too.

  18. lkcape

    You are looking in the wrong place in the Constitution and its amendments.

    Tenth Amendment:

    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. “

  19. Harrybosch

    “But there is a mandate that you have health insurance if you live in Massachusetts.”

    Blatantly unconstitutional. I imagine (and hope) that cases are working up the judicial system now.

    “My point about immunization and auto insurance is that they are virtual mandates.”

    And my point is that we are not required to report our immunization or auto insurance status to the state on our tax return on an annual basis.

    In Massachusetts today, we are required to report our health insurance status to the state. And if this bill passes, I imagine we will have to report that to the Federal Government as well.

    “You can’t participate in society unless you obey, especially with respect to immunization.”

    And the government (and private entities) provides immunization free of charge, no questions asked, do they not?

    Would that this bill did just that. But they didn’t have the courage to do that.

    Anyway, the right I hold most dear is to be left the hell alone.

    This bill (and the Massachusetts bill) is simply another unwanted intrusion in my life.

  20. mike_b1

    Oh, Harry, you’ve overreached, my friend. Every adult member of my family except one is either a lawyer or a doctor — that’s five lawyers and four physicians. (I’m the holdout.) Children indeed must be immunized, by law. But since I know you won’t take my word for it, see below:

    From the CDC:
    Each state has immunization requirements, sometimes called “school laws,” that must be met before a child may enter school. These may include vaccination against diphtheria, pertussis (whooping cough), tetanus (lockjaw), Haemophilus influenzae type b, measles, mumps, rubella, polio, and hepatitis B. Some states have added varicella (chicken pox) vaccination to the list of required vaccines. Smallpox vaccination was once required, but the disease has been so successfully eradicated that this vaccination is no longer needed.
    http://www.hhs.gov/nvpo/law.htm

    From Lawyers.com:

    “In 1809, Massachusetts became the first state to pass a law requiring immunization against smallpox. … The government does require children to be vaccinated. For example, every state has immunization requirements that must be fulfilled before a child may enter school. These school immunization laws are often based on the recommendations of the infectious disease committees of the American Academy of Pediatrics, the Centers for Disease Control and Prevention, and the American Academy of Family Physicians.”
    http://health-care.lawyers.com/Immunization-and-Vaccination-Laws-in-the-US.html

    1. Dan Kennedy

      @mike_b1: The point @Harrybosch was making is that you can get out of the requirement by home-schooling your kids.

  21. mike_b1

    @Dan, yes, I did recognize that, but it seemed to me his original point stated there was no law, when indeed there is. Furthermore, a quick check of the literature shows that the pressure is increasing to close the home-school exemption (see Arthur Caplan, Journal of Law, Medicine and Ethics).

  22. Harrybosch

    “it seemed to me his original point stated there was no law, when indeed there is.”

    My original point was quite clear. Let me say it again:

    This bill contains a mandate that, for the first time in American history, requires citizens to buy a product from a private company.

    Nothing you have posted, Mike, refutes my point.

  23. O-FISH-L

    @mikeb_1: “O-Fish and her ilk…”

    Mike, are you really of the mistaken belief that I’m a woman, or is your ongoing use of the female pronoun for me just a sign of immaturity? Dan’s comment policy asks for a civil discussion of the issues. Try it sometime. Or at least make violations of it worthwhile.

    As for your request for a list of Republican accomplishments, here’s a very partial one in honor of Dr. King: Lincoln freeing the slaves, GOP passage of the 14 and 15th amendments, Earl Warren’s landmark opinion on Brown v. BoE, Eisenhower’s passage of the 1957 Civil Rights Act and sending federal troops to integrate schools in Little Rock (both over JFK’s objections), Republican MLK’s achievements in the 50’s and 60s, Sen. Edward Brooke (R-MA) first elected black senator, Gerald Ford’s revocation of tax-exempt status for racist Bob Jones University, Reagan’s huge improvements in black standard of living and making MLK Day a federal holiday, G.H.W. Bush appointing the second black justice to SCOTUS and the first black Chairman of the Joint Chiefs, G.W. Bush appointing the first and second black Secretaries of State in US history and his clarion call for an end to the soft bigotry of low expectations. Need I continue?

  24. Harrybosch

    “Republican MLK’s achievements in the 50’s and 60s”

    Repeating the same thing over and over again does not make it true.

    There is no evidence that Martin Luther King was either Democrat or Republican, whatever immediate or extended members of his family might claim.

    And unless you can provide other than anecdotal evidence, you (and they, frankly) do a disservice to his memory by claiming otherwise.

  25. mike_b1

    Don’t come in here with your “Civil Rights At of 1957” nonsense. All that did was create another governmental office.
    Johnson’s 1964 bill was the significant work.

    Find a black man of significance in the Republican Party today. Michael Steele does not count. Moreover, none of the events you cite was helpful to Latinos (“illegal immigrants” in GOP-speak); women; or any other disenfranchised group.

    And Clarence Thomas was a token, as everyone knows.

    Btw, are you not female? And if not, how would I know?

    1. Dan Kennedy

      Find a black man of significance in the Republican Party today.

      Colin Powell. If he hasn’t been kicked out.

    2. Dan Kennedy

      @mike_b1: Fish is not female. I know it for a fact. I’ll be generous and assume you are confusing him with @Peter Porcupine. But now that you know, give it a rest.

  26. mike_b1

    @Harry: The immunization acts most certainly do. All but roughly 1 million school-aged kids must buy (and be inoculated with) antidotes. And those antidotes are developed and sold by private companies, not the government.

  27. Harrybosch

    “All but roughly 1 million school-aged kids must buy (and be inoculated with) antidotes.”

    School-aged kids are not forced to buy anything.

    Parents who do not wish to have their children innoculated do not have to send their children to public schools.

    But for those parents who do, it is my understanding that innoculations are given free of charge.

    Is that not correct?

  28. Harrybosch

    “The immunization acts most certainly do.”

    And beware the causes you champion.

    The Supreme Court decision in Jacobsen v Massachusetts that upheld the power of the state to vaccinate was later cited as precedent in Buck v Bell that upheld Virginia’s authority to sterilize the feeble-minded.

    Society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v Massachusetts, 197 US 11. Three generations of imbeciles are enough.

    – Oliver Wendell Holmes

  29. Bob Gardner

    It’s interesting that in a time when most candidates make a point in their campaign commercials of showing a diverse electorate that Scott Brown went to Southie and spoke only to white people.

  30. mike_b1

    @Harry, do you have kids? And if so, did you pay anything (either directly or through insurance) to have them immunized?

  31. O-FISH-L

    I’d be curious to see, especially in the age of suspicion that vaccine causes autism, whether any child has been turned away from public school for failing to have a vaccine. While the law is the law, enforcement is another story.

  32. Harrybosch

    Mike:

    If you’re not going to answer my questions, I see no reason to answer yours.

    But none of it changes the fact that there is no mandate, under penalty of law, to have your children immunized.

    But keep tilting at windmills, if you like.

  33. mike_b1

    The answer to your question, Harry, is that vaccines are not given free of charge. You pay a co-pay. And you pay insurance premiums.

    A small percentage of people will be immunized for free because they qualify under various welfare-type programs.

  34. CAvard

    Dan, this is a good post. It sort of reminds me of Jon Stewart’s recent Daily Show episode. Stewart said George W. Bush didn’t have 59 plus two Senators during his administration, but he still got things passed (or something to that affect). Did you see it?

  35. Joel Fuhrmann

    Interesting that you cite Krugman for the view that “the routine filibuster is a very recent phenomenon, and entirely Republican in origin”. Back in the Bush administration, Krugman was praising the Democrats use of the filibuster to block Bush judicial appointments. He even cites the Republican attempt to stop it, which failed, in his column. Seems that Krugman, and Dan Kennedy, actually just want a different set of rules to apply when Democrats have a majority, especially when they have the White House to rubber stamp the change.

    Also, the 196-110 split over party representation in the Senate is pure fiction. Kennedy only applies the rule to states with split representation, and applies a 50/50 split. That doesn’t reflect reality. Senators from states with two Democrats or two Republicans weren’t elected unanimously. Sure they’re representing the whole state, but that doesn’t mean everyone in that state wanted them to. The House of Representatives, elected by district, is a better reflection of reality, and voila, that’s what it’s there for.

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