Sunday, February 28, 2010

Inefficiency - Not a Bug, but a Feature of the Constitution

A filibuster is a means of slowing down or preventing a vote on legislation in the U.S. Senate by refusing to end debate. The rules of the Senate allow a filibuster to be stopped by cloture, which is a procedure to end debate on a bill, but cloture requires a vote of 60 percent of the Senate. Some of the same people in Congress who argued in support of filibustering judicial nominees of President Bush in 2005 are now arguing that filibustering health insurance reform legislation in the Senate is unconstitutional and are arguing for the reconciliation process to avoid the need to have 60 votes to stop a filibuster from preventing its passage in the Senate. A filibuster, they say, in anti-democratic because it blocks the will of the majority. A filibuster certainly does frustrate the will of a majority in the Senate and, even if the filibuster ultimately fails to stop legislation, it creates inefficiency by slowing the process down. However, neither frustrating the will of the majority nor slowing down the process makes a filibuster unconstitutional. In fact, the Constitution is all about making it difficult for a majority to prevail and about slowing down the process of making new laws. If the people who created the Constitution had wanted to create a quick and efficient process of turning the will of the majority into legislation, there would not even be a United States Senate, which is not very democratic, since states with widely different populations are each represented by two Senators. Instead, there would just be a House of Representatives and a bill would become law by a simple majority vote. The President would not have the power to veto legislation, because that would frustrate the will of the majority. Instead, the Constitution requires that in order to become law, the same version of a bill must be passed by both the House of Representatives by majority vote and it must signed by the President (or it becomes law without his signature if he does not sign or veto it within ten days and Congress is still in session at the end of the ten-day period. If the President vetoes the bill (by returning it to Congress or by doing nothing while Congress adjourns within ten days after the bill is presented to him), then the bill must again be passed by both houses of Congress, but this time by a two-thirds vote in each house. Even then, the Supreme Court can frustrate the will of the majority of Congress by declaring legislation unconstitutional. The Constitution is all about slowing down the process and making it difficult for the will of the majority to prevail. If the goal of the Constitution was to efficiently implement the will of the majority, it could have just created the House of Representatives and had given it the power to create the rest of the government and to change the rules whenever it pleased, with no separation of powers, checks and balances, requirements of supermajorities, or any of the other “inefficient” and “undemocratic” features. The founders of the United States were not opposed to majority will, but they were aware that majorities can be very temporary and can base decisions on emotion rather than careful thought and planning. In other words, they preferred that legislation be passed by a slow process that makes it unlikely that legislation gets passed without broad support. The process of passing laws was intended to be inefficient. The process of amending the Constitution even more strongly indicates the purpose of slowing down the process and making more difficult for the will of a simple majority to prevail. An amendment to the Constitution needs a vote of two-thirds of both houses of Congress to be proposed and needs to be ratified by the legislatures of three-fourths of the states to be ratified – hardly an efficient process. Actually an amendment can be proposed by a convention call by Congress on the application by the legislatures of two-thirds of the states and an amendment can be ratified by conventions in three-fourths of the States, but these methods are not commonly used. The inefficiencies in creating laws and Constitutional amendments were features of the system, and not bugs.

The filibuster itself has an interesting history, which is stated briefly on the website of the United States Senate at Originally, a bill could be debated endlessly in both houses of Congress. Unlimited debate became impractical in the House of Representatives because of it had more members than the Senate, so the rules of the House of Representatives no longer allow for unlimited debate. The first limitation on unlimited debate in the Senate came with a change in the Senate rules in 1917, when debate could be ended by a cloture vote of two-thirds of the Senate. The number of votes needed for cloture was changed from two-thirds to 60 percent in 1975. If endless debate in the Senate was consistent with the Constitution even without the possibility of a cloture vote to stop it before 1917, it must still be consistent with the Constitution when it can now be stopped with a cloture vote.

In short, the inefficiency of lawmaking in the United States is not such a bad thing. However, while we can tolerate inefficiency, why do we need to tolerate the enormous expense?

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