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No, They’re Just Hypocrites

[ 40 ] February 20, 2011 |

James Joyner makes a valiant but inherently doomed attempt to defend people who have lionized the Tea Party and the Republican opposition to health care, but have now discovered that subsequent to an election new governments should be able to immediately pass their agenda and the opposition should just shut up about it:

While this sounds good on the surface, I would argue that the parallel is not as strong as it might seem.

The United States government was intentionally set up with a series of institutional barriers to democracy, on the theory that we were a collection of states with partial sovereignty and we did not want fleeting majorities to be able to impose their will. Aside from separation of powers, the most notable concession to this was the creation of the United States Senate, which gives each state equal power despite vast differences in population. (Admittedly, this was part of a necessary compromise, with the House being more-or-less democratic.)

State governments, by contrast, typically do not have these sort of institutional barriers because states are thought to be more homogeneous. So, the election of a governor of one party and a legislature of the same party tends to produce rapid, coherent policy adoption.

Um, no.   A few problems here:

  • It should first of all be noted that, as is pretty much always the case, attempts to claim that these disputes are really arcane theoretical disputes about federalism are implausible in the extreme.   This is a substantive dispute; it’s not an argument that protest is legitimate against the federal government but not any state government.   Althouse likes the Tea Party and dislikes the Wisconsin protests because she agrees with the former ideologically and not the latter; there’s nothing else going on here.
  • Even if we pretend for a second that federalism is doing any work here, I don’t think James’s argument can withstand scrutiny.   He borrows Madison’s empirical analysis from Federalist #10 but stands his normative analysis on its head.   It’s true that Madison argued that state polities were more homogeneous.   But, to Madison, this was a problem.   The more homogeneous the polity, the more necessary countermajoritarian checks are, because diversity is its own check.   If you buy Madison’s argument, the Wiconsin protests are if anything more consistent with Madisonian theory.
  • But whatever the theory, we have to examine how state governments were actually set up, and this is where James’s argument becomes especially puzzling.    “State governments…typically do not have these sort of institutional barriers because states are thought to be more homogeneous,” he argues.   But, of course, all 50 states seperate the legislative and executive branches, and 49 replicate the same basic high-veto point structure as the federal government by adding a bicameral legislature.   The Madisionian structure of state governments should not be expected to always produce rapid policy change (and if he doubts that, I invite him to come visit us in Albany for some first-hand analysis of near-permanent gridlock.)    The malapportionment of the federal Senate is the only substantial structural difference (and, prior to the intervention of the Warren Court, many state legislatures similarly ovverrepresented rural factions.)  And the malapportionment of the federal Senate makes the filibuster — which further empowers already grossly overrepresented minorities — less defensible, not more.      And the fact that the obstruction by the opposition in Wisconsin is one-shot rather than systematic also makes it, if anything, more defensible.
  • Lest I be accused of pulling a reverse-Althouse, I’m not saying that this makes the Tea Party/Republican opposition somehow procedurally illegitimate.   At both the state and federal level, people should protest policies they oppose, and using the proocedural tools at your disposal in an attempt to prevent the implementation of politices you oppose is politics.   But nothing of value comes from trying to cloak substantive disagreements in ad hoc procedural arguments.
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  1. Joe says:

    Is there a way to provide spacing between the bullet points? When you use them without spacing, it is harder to read.

  2. DrDick says:

    I think there is a general given here that whenever conservatives appeal to principle, they are lying. The only principles they care about are winning and holding power.

  3. trizzlor says:

    At both the state and federal level, people should protest policies they oppose, and using the proocedural tools at your disposal in an attempt to prevent the implementation of politices you oppose is politics.

    Really? I remember quite a lot of hand-wringing over the GOP-led filibuster going against the spirit of the constitution and holding the majority hostage. And, just as in Walker’s case, Obama was choosing to address a serious health-care/fiscal issue with a partisan solution that had long become dogma for his side.

    Good on you for pointing out the hypocrisy this time though.

    • dave3544 says:

      I think it’s fair to say that the majority of writers on this site – posters and commenters – are no fans of the filibuster, but I also don’t really remember people being too up in arms about the Republicans using it. That it exists, yes; that they were using it, no.

      Also, most of the hand-wringing was about Dems and so-called allies holding the legislation hostage.

      Lastly, if Obama’s health care legislation was “partisan” it was only in following mostly Republican ideas from the preceding decades.

      • Scott Lemieux says:

        Right. There’s a not-very-subtle distinction between opposing the rule and arguing that it was illegitimate for Republicans to use it. I was doing the former and not the latter.

      • R. Porrofatto says:

        Given the unprecedented regularity with which they invoke it, Republicans haven’t been so much using the filibuster as abusing it, and there really is a difference. This has been the target of some criticism, deservedly so, IMO.

        • Scott Lemieux says:

          Given the unprecedented regularity with which they invoke it, Republicans haven’t been so much using the filibuster as abusing it, and there really is a difference. This has been the target of some criticism, deservedly so, IMO.

          Eh. Perpetuating the idea that the rule is OK but it’s the people using it who are wrong is a bad approach. The rule is the problem; as long as it’s there, the “abuse” will continue.

          • chris says:

            The problem is that there was an unwritten rule that while the filibuster may be there for some bills, you don’t use it so much that it screws up the whole country. This masked the badness of the _actual_ rule up until the Republicans stopped respecting the unwritten rule and revealed that a minority could, in fact, screw up the whole country with the rules actually on the books.

            Now that that’s happened, though, I agree that fixing the actual rule is the only solution; the unwritten rule, once broken, cannot be effectively restored. Everyone will be aware that it can be broken again on a whim.

          • R. Porrofatto says:

            I don’t disagree at all. I was responding to the commenter above who didn’t “really remember people being too up in arms about the Republicans using it.” I think the rule itself, and especially what it’s evolved into, is abominable. I’d say “unconstitutional” since my copy of the doc doesn’t have anything about legislation requiring a supermajority in the Senate, but that’s just because I’m an ignorant lay person.

            • Holden Pattern says:

              The filibuster is not unconstitutional, in the sense of “prohibited by the Constitution” but it’s not constitutional, in the sense that it’s nowhere in the Constitution, and there’s no evidence of any sort that a supermajority requirement which could be invoked by a simple quorum call was contemplated by the people who wrote the document (if you go in for that sort of investigation).

              It’s just a simple procedural rule (like the single-Senator legislation or nomination holds) that the petty tyrants in the Senate have decided they like because it gives each of them so much power.

    • DrDick says:

      There is also the minor point that Obama actually ran on reforming health care and one by a substantial margin. Similarly, the proposal was initially immensely popular and only lost popularity as the process drug out forever and the right mounted an all out propaganda campaign to lie and distort what it was about. In contrast, Walker never mentioned union busting in his campaign and there is no evidence for widespread support for this action. Indeed, public response would suggest the contrary.

      • joe from Lowell says:

        I can’t believe these people, upon coming to power, decided that the first items on their agenda would be abortion restrictions and union busting.

        • R.Johnston says:

          I can’t believe anyone would think for even a second that these cretins would have any priorities that take precedence over posturing about abortion restrictions and union busting.

          • Malaclypse says:

            Tax cuts take priority, but they got those enacted without needing to lift a finger.

            • R.Johnston says:

              The Democrats in all their idiocy passed the huge tax cuts before the Republicans took over. But, yeah, if the Democrats hadn’t gutted themselves like fish then that would have been the Republicans top priority in the current congressional session.

          • DrDick says:

            The people, other than the committed base, who vote for Republicans are typically pretty low information voters who pretty much believe what the candidates say.

          • joe from Lowell says:

            Once upon a time, Republicans used to try to do things that were popular and politically smart when they came into power.

          • chris says:

            No, but they should have had the political sense to pretend to care about the nation’s problems. Even pretending to care about the nation’s fake problems (like immigration) would be a step forward.

        • efgoldman says:

          I can’t believe these people, upon coming to power, decided that the first items on their agenda would be abortion restrictions and union busting.

          Really? I’ve been following you for a long time on several sites, and I’d have thought your cynicism would have been plenty high enough to believe it.

          Or does my snarkasm meter just need calibration?

    • joe from Lowell says:

      Wait wait wait – you think the solution in the ACA (mandated purchase of health insurance from private, for-profit corporations) is ” a partisan solution that had long become dogma for his side?”

      You haven’t the foggiest idea what you’re talking about. That solution was first proposed by Bob Dole and the Heritage Foundation, as the alternative to Clinton’s health care plan. It is “dogma” for something like 0.0% of Democrats, who, almost to a man, support either national health care, single payer, or at least a public option.

      How you manage to be unaware of this fact is beyond me.

      • DocAmazing says:

        Democrats, who, almost to a man, support either national health care, single payer, or at least a public option.

        They just don’t do it in public.

        • joe from Lowell says:

          What are you talking about? Democrats argue for those things all the time.

          • calling all toasters says:

            They stop when they get elected Senator, though.

            • chris says:

              Only the ones from very red states. There was (IIRC) majority support for the public option — just not supermajority support.

              • chris says:

                Also, of course, the Pelosi House passed a shitload of very progressive stuff, *including* the public option, which the Democratic Party somehow never gets credit for from their own base, even the parts that had 50-59 votes in the Senate.

                When the right defines the Democratic Party by Nancy Pelosi and the left defines it by Max Baucus, no wonder its approval ratings are so low — everyone only looks at what they don’t like about it. (Worse, the same phenomenon seems to drive a turnout gap, too.)

                Is there a way for big tent parties to beat that rap?

          • DocAmazing says:

            Then they take them off the table.

            Arguing’s nice. Id like to see legislating.

  4. Scott Lemieux says:

    I remember quite a lot of hand-wringing over the GOP-led filibuster going against the spirit of the constitution and holding the majority hostage.

    And, as I said at the time, assertions that the filibuster was inconsistent with the Constitution were frivolous.

  5. James Joyner says:

    Scott,

    The federal government was built around the idea of competing geographies in a way that the state governments weren’t. The people of Virginia have stronger claims against being ruled by the people of New York than do the people of, say, Richmond against Arlington or those of Buffalo against those of Highland Falls.

    But that’s mostly a defense against the charge of hypocrisy. We’re in fundamental agreement — as noted in the second half of the linked post — that those in the minority have every right to use the legitimate institutional tools to stop the majority from ramming through legislation.

    • dave3544 says:

      The Tea Partier’s claims that their fight had something to do with the fundamentals of federalism were and are crap. They were whipped into a frenzy about a supposed Red Menace (with a healthy undertone of fear of a black man having power) and it had nothing to do with a close reading of the Federalist Papers. That the #1 shouted solution to the health care crisis was “TORT REFORM!!!!” should have put to an end any thought that the Tea Partiers were advancing a sophisticated argument about the proper role of the federal government.

      Are complaints about the GOP’s use of the filibuster equivalent to complaints about the Dems fleeing the state? Maybe, but that’s not most of what I am hearing. I am hearing righties complain about citizen protesters who are not respecting “democracy” and Scott is pointing out those same righties didn’t seem to find anything wrong with the Tea Parties.

    • Scott Lemieux says:

      The people of Virginia have stronger claims against being ruled by the people of New York than do the people of, say, Richmond against Arlington or those of Buffalo against those of Highland Falls.

      Whether or not that’s correct in theory, that’s not the theory that our state governments are actually based on. They’re based on the same diffusion-of-power principles as the federal government.

      You’re right that it’s a minor point, but even if I believed that federalism was central to the arguments of Althouse et al (which I absolutely do not), I don’t think the argument works. The structure of our state governments have all kinds of counter-majoritarian checks.

    • Joe says:

      The first paragraph is only a matter of degree.

      The rural/urban divide cited by Scott underlines states too have competing geographies, and that was a major issue of conflict in the 18th Century.

      Likewise, states have bicameral legislatures, which very well can conflict with even governors of their own party. The Warren Court made the legislatures, including state senates, more democratic, but the basic idea stays the same.

      So, attempts to overturn same sex marriage via amendments in many states are problematic because it’s harder to pass amendments because of state institutional barriers.

    • jefft452 says:

      The people of Virginia have stronger claims against being ruled by the people of New York than do the people of, say, Richmond against Arlington or those of Buffalo against those of Highland Falls

      um… do you know why West Virginia became a state?

      • chris says:

        Also, Richmond and Arlington are a really bad example because they’re both urban areas not that far apart. If Arlington was being ruled by Danville or Lynchburg, let alone the rural counties surrounding them, that would be a much bigger deal.

  6. victor says:

    Is there a distinction to be made, procedurally, between the filibuster and quorum-fleeing? I like the way that quorum flight in practice proceeds like filibusters were historically understood in theory: it requires significant personal and political sacrifice by the determined minority to block a majority agenda.

    But it’s not clear to me they really stand on equal grounds. An indefinitely prolonged quorum flight is the equivalent of simply shutting down the legislature, as opposed to making legislation highly difficult as the Republicans did.

    Unfortunately, I can’t think of a better way in the short term of countering the egregious union-busting Walker is attempting here. Perhaps a move for recall, if such is allowed.

    • DrDick says:

      It is allowed, but not for another year. Elected officials in Wisconsin ave a one year grace period before they are subject to recall.

    • Hogan says:

      An indefinitely prolonged quorum flight is the equivalent of simply shutting down the legislature,

      So is an indefinitely prolonged filibuster. So are a lot of things that happen in the Senate, like one-person blocks on bills and appointments, repeated quorum calls and other parliamentary clutter. It’s just that when you’re at your desk, it’s a little less obvious that you’re not actually doing your job, nor are you letting your co-workers do theirs.

      • Scott Lemieux says:

        Yeah, they seem almost precisely equivalent to me.

        • victor says:

          But filibuster, one-person blocks, parliamentary obstruction etc work on a bill by bill basis (today at least, I agree that an old-fashioned take over the floor type of filibuster does shut down the legislature, but the filibuster works now more as threat and cloture votes). Quorum flight effectively ends the legislature period, so long as the legislators are out of the state, for any business done.

          If the Republican Senators had simply left the country instead of accepting Health Care Reform, and thus ending the Senate for as long as they were out, that’d be a more dramatic form of obstruction than what they did do, which allowed for at least some legislation to continue. (I am assuming an equivalent quorum requirement in the U.S. Senate. Given I’ve never heard anybody mention one, this may be invalid).

          • victor says:

            [After further pondering] My objections may be more theoretical than practical. In the short term, the difference between what the Democratic legislators are doing, and what the Republican senators have done over the last two years, as a question of process,is small. The Democratic obstruction is simply clearer and more theatrical than the Republican nihilism. I hope the Wisconsin legislators hold out for awhile.

            Over the long run, though, I am not sure it makes sense as original proposition for a legislature to have a quorum rule that would allow a determined and well funded minority to simply put an end to the legislature by simply decamping to another state and living in hotels for the next two years. It’s a tactic for stopping legislation that I think could equally well be used someday to stop progressive legislation, by Republicans who would feel no particular shame at doing it.

            • Anonymous says:

              Apparently the Wisconsin senate can still vote on things that don’t cost money as long as there’s a simple majority (see here ), so the Dems haven’t put an end to all legislative functions.

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