Tuesday, February 16, 2021

Lectiones: Democratic Mojo



Speaking of abolishing ICE without abolishing ICE, Ian Milhiser at Vox offers a repertory of techniques for abolishing the filibuster without abolishing the filibuster, by scraping away at it bit by bit until it's small enough to, you know, drown in the bathtub:

  • Make fewer bills subject to the filibuster: The Senate can create carveouts and exempt certain matters from the filibuster altogether, as it does with bills subject to the reconciliation process.
  • Reduce the power of individual rogue senators: The Senate could make it harder to initiate a filibuster. Right now, unanimous consent is required to hold a vote without invoking the time-consuming cloture process. But the rules could be changed to allow an immediate vote unless a larger bloc of senators — perhaps two or five or 10 — objected to such a vote, instead of just one.
  • Make it easier to break a filibuster: The Senate could reduce the number of votes necessary to invoke cloture. This could be done as an across-the-board reform, like the 1975 change to the filibuster rule that reduced the cloture threshold from 67 to 60. Or it could be done by creating a carveout for certain matters, such as the 2013 and 2017 reforms that allowed presidential nominees to be confirmed by a simple majority vote.
  • Reduce or eliminate the time it takes to invoke cloture: The Senate could reduce the amount of time necessary to invoke cloture and conduct a final vote. This could be done by allowing a swifter vote on a cloture petition, by reducing or eliminating the time devoted to post-closure debate, or both.

The Senate changes the rules all the time, by simple majority vote—that's how they made it possible for Obama to nominate a bunch of judges and about 170 executive-branch officers—and it would be so much easier to carry on with it that way, giving Joe Manchin and Kyrsten Sinema cover to vote for it (in 2011, Manchin voted for a great reform idea, that of forcing anybody who wanted to stop the cloture vote to give a good old-fashioned Mr. Smith Goes to Washington talking filibuster, but it didn't get past McConnell) without breaking their promises.

Next up: can we defund the police without defunding the police? It might be the best approach.


I find myself in the bizarre situation of wanting to praise an essay by David "Axis of Evil" Frum, in the current Atlantic ("The Founders Were Wrong About Democracy"), also touching on the filibuster, but in a broader context:

To protect property from the people—and ultimately, the people from themselves—the Framers would have to erect “a necessary fence” against “impetuous councils.” A Senate to counterbalance the House of Representatives, selected from a more elite few and serving for longer terms, would be one such fence. The indirect election of the president through an Electoral College would be another. A federal judiciary confirmed by the Senate and serving for life would provide one more. And so on through the constitutional design.

The system of government in the United States has evolved in many important ways since 1787. But the mistrust of unpropertied majorities—especially urban unpropertied majorities—persists. In no other comparably developed society is voting as difficult; in no peer society are votes weighted as unequally; in no peer society is there a legislative chamber where 41 percent of the lawmakers can routinely outvote 59 percent, as happens in the U.S. Senate.

This system is justified today with the same arguments as when it was established a quarter millennium ago. “We’re not a democracy,” tweeted Senator Mike Lee of Utah in October. Lee explained his meaning in a second tweet that crammed Madisonian theory into fewer than 280 characters. “Democracy isn’t the objective; liberty, peace, and [prosperity] are. We want the human condition to flourish. Rank democracy can thwart that.”

In fact, as Frum notes, "rank democracy" was exactly what would have prevented the election of a "lying, vulgar, criminal demagogue" to the presidency in 2016; it was a minority, thanks to the "necessary fence" of the Electoral College, that did that. Similarly, democracy would have passed the Dream Act, favored by a big majority of citizens, in 2010, but only 55% of the senators voted for it, and it was killed by the filibuster. John Cornyn (Royalist-TX) has written, 

A practical consequence of breaking the filibuster rule is legislative whiplash. Each time a party gets a bare majority, it can jam [bills] through, only to be reversed when tides turn. The 60 vote cloture requirement (filibuster rule) requires bipartisanship and provides stability in our laws- something we should all want in a big, diverse country of 330 million people.

But whiplash was exactly what it got—when Obama had no choice but to go to an executive order to implement the desires of the American people, with the DACA program, and DACA fell into a tennis match of dueling lawsuits and Trump executive orders and a situation of insane instability for everybody involved.

Frum's piece comes up short, as you might expect, in the assignment of blame for our postmodern predicament, and shorter still in the proposal of remedies, but I'm honestly impressed by the courage it takes for a pundit to say plainly that the Founders—Hamilton and Madison, in the sacred Federalist!—got something wrong. (In fact, in spite of defending it in the Federalist, Madison hated the Electoral College, arguing at the Constitutional Convention that "'the people at large was...the fittest' to choose an executive. Although he recognized that such a system would put southern states, including his native Virginia, at a major electoral disadvantage, Madison believed that 'local considerations must give way to the general interest,' and he was 'willing to make the sacrifice' of his state's political power for the good of the American democracy." But he broke, at the Convention, to the majority of the white property-owning Virginians he represented.) 

Imagine David Brooks trying to come up with such a thought. And, even rarer, to defend majoritarian rule as a protection against mobs. I guess what that proves is that Frum really isn't a conservative any more—from my standpoint, in which conservatism is basically nothing but opposition to democracy ever since 1790, when Burke and De Maistre reacted in terror to the French Revolution and the concept of the rights of the citizen and pitched their different tents in the camp of resistance to change of any kind—and he'd do better if he realized that. Still, it's really refreshing as far as it goes, and extremely well written (on purely literary grounds I will never scream at The Atlantic for giving Frum the gig, which he deserves so much more than imposters like Bill Safire and Peggy Noonan deserved theirs, to say nothing of David Brooks or Bret Stephens or the like).

Third Ways

Lastly, this piece by Adam Przeworski from the Boston Review ("From Revolution to Reformism") wondering what happened everywhere, but especially in Europe, to democratic socialism and social democracy and the idea of using reform to bring about revolution, a transformation of society, which they all seem to have abandoned in the 1970s and 80s in favor of the transactionalism to which UK Labour and French Socialism along with German and Dutch and even Swedish Social Democracy all turned even as Democrats in the US, from real sort-of leftists like Michael Dukakis and Hillary Clinton to really-not-leftists like Bill Clinton and Barack Obama, set the fatal tone of working with a legislative laundry list of policies that sound pretty good but never suggest that there's an overarching moral principle at issue.

Przeworski localizes where the whole thing went wrong, and they all decided to cohabit with neoliberalism:

The constraints of capitalist economy turned out to be inexorable, and political defeats meant that reforms could be reversed. In office in most Western European countries, social democratic governments desperately searched for responses that would preserve their commitment to “ultimate goals” in the face of the economic crisis. During the early 1970s, socialist parties developed new energy policies, workers’ management schemes, and structures of economic planning. But James Callaghan’s loss to Margaret Thatcher in the United Kingdom in 1979, and the departure of communists from François Mitterrand’s government in France in 1984, administered fatal blows. Mitterrand’s turn to austerity was the final act of resignation in the face of domestic and international constraints. All that was left were successive “third ways.”

The evolution of social democracy until the advent of neoliberalism has been extensively documented. The capitulation of the left to the neoliberal offensive is more puzzling. It is thus revealing to get a glimpse of how social democratic leaders saw the future when they got the first whiff of the impending crisis of their long-term project. Fortunately, they were articulate about their fears, their hopes, and their plans. Particularly telling is an exchange of letters among German Chancellor Willy Brandt, Austrian Chancellor Bruno Kreisky, and Swedish Prime Minister Olof Palme on the eve of the first oil crisis of the 1970s.

That's exactly when it was—please read the piece—but the lesson is general. The first step has to be to agree that this happened, everywhere (in Singapore and Malaysia, Australia and Tanzania and Peru, too), and there's a democratic mojo there that we all need to get back. It's crazy to imagine a Biden administration in the US could be a vehicle toward doing that worldwide, but let's just remember, once again, 1933.

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