When Congress Is Undemocratic
posted by Daniel Solove
Recently, several senators have been accused of putting a “secret hold” on a bill designed to curtail pork-barrel spending. According to Reuters:
Any member of the Senate may place a secret “hold” on legislation, which prevents it from being brought up for a vote until concerns about the measure are resolved.
A lot of attention thus far has been spent trying to out the senators who used this option. But not that much attention has been paid to this Senate rule that allows for a “secret hold.” This rule strikes me as immensely undemocratic.
Congress is often touted as the most democratic branch. After all, this is where the people through their elected “representatives” are to enact their preferences into law. But Congress (especially the Senate) often functions with a set of arcane rules that are more befitting to a secret society than the voice of democracy. The “secret hold” rule allows just one senator to block consideration of a law — and to do so without any accountability. There’s also the seniority system, which rewards longevity with more powerful committee assignments, helps entrench incumbents. Voters who bring in a new congressperson lose the plum committee assignments held by an ousted senior incumbent.
Of course, there’s the filibuster — perhaps the most well-known and oft-criticized Senate rule. But at least the filibuster rule allows a supermajority to override it, so it still can be deemed democratic — just not majority wins.
Rules like a “secret hold,” however, undermine Congress’s ability to act like a democratic deliberative body. Perhaps it is time for Congress to reform itself and begin using a more democratic rulebook. I’m far from an expert on Congressional rules, so I’ve only cited a few rules that I find undemocratic. Can anybody provide other examples of undemocratic rules?
September 6, 2006 at 12:35 am
Posted in: Constitutional Law, Politics
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Responses (5)
Frank - September 6, 2006 at 8:32 am
There’s a great piece by Thomas Geoghegan in TNR, I think, that shows just how undemocratic the filibuster is…at the time it was written, the least populous 20 states (with about 10% of the population) could form the block of 40 needed to block cloture. But as Stepan and Linz show in some of their comparative government work, systematic overallocation of power to states or provinces in the “senate” half of bicameral legislatures is pretty common…I think they said Brazil was the most extreme example.
Simon - September 6, 2006 at 6:38 pm
Dan,
Like my fellow Republicans who – misguidedly, in my view – would seek to invole the nuclear option in the name of the majority, you invoke democracy to criticize a supermajority rule of the Senate. Perhaps you could explain what democracy has to do with a legislative body where two Senators cumulatively representing 1.13 million people (Wyoming and Vermont) exercise more power than does one Senator representing 36.13 million people (California)?
The Senate was not built for democracy. The Senate was built to provide a check on the House of Representatives, and prior to the Seventeenth Amendment a check on federal enlargement. If you want a purely majoritarian Congress, I’m not sure why you need a Senate in the first place – the only way to make the Senate compatable with majoritarianism or democracy is to abolish it entirely. Personally, I think it serves a valuable function as it is, and would serve an even more valuable one if we would return it to its original place in the Constitutional design.
Frank - September 6, 2006 at 7:00 pm
Simon provides a valuable perspective; however, I would like to know whether the disproportion in state size at the time of the founding was similar to that existing today. Certainly if there were massive population decline in the 20 least populous states, it would seem bizarre to give them effective veto power over all legislation.
Ethan - September 6, 2006 at 7:21 pm
“It’s the anonymity, stupid”
At the risk of appearing to defend such an “undemocratic” tool as the “anonymous hold,” a little additional understanding of Senate rules and procedure makes the hold a much more palatable – indeed democratic – tool. (It’s the anonymous part that is problematic.)
A great background and explanation is on the Federation of American scientists website :
http://www.fas.org/sgp/congress/2003/sres216.html
Here’s the short (and good enough for blogland) answer:
In the Senate, legislation can pass by unanimous consent, in theory indicating that no Senator objects to it. As a practical matter however, a seconded motion on the floor of the Senate to pass a bill by unanimous consent passes if the presiding officer hears no objection to the motion. So as little as 3 senators a passed bill does make. (This is one reason why each party strives to keep a member on the floor at all times…) To insure such chicanery doesn’t result in the passage of a bill a Senator opposes, a Senator can put a hold on the bill preemptively.
Simon - September 6, 2006 at 8:01 pm
Frank,
If anything, the disparity was even greater at the time of the founding: you can find the 1790 Census here. As my Stubborn Facts co-blogger Pat noted a couple of weeks ago, talking about the similarly undemocratic Electoral College, in 1791, “Virginia, the most populous state, had 18.7% of the total population of the original 13 colonies, while Delaware only had 1.7%” Both recieved two United States Senators.
But either way, why would it seem bizarre? The United States was founded as, remains today, and, what is more, should remain, a Federal Republic, not a pure, direct democracy. The Framers were absolutely explicit on this point; see Federalist 39:
(emphasis in original). Cf. Federalist 62:
Even opponents – fearful of excessive Federal encroachment on the states – recognized its function. As “Brutus” noted in Antifederalist 62:
Criticizing the Senate for being undemocratic is like criticizing a horse for being a horse.
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