16 July 2013

The Senate's nuclear deterrent

The U.S. Senate is a sad body when John McCain is its voice of reason. The former presidential candidate reportedly brokered a deal in the past 24 hours according to which his fellow Republicans will no longer block votes on five of President Obama's nominees for various federal positions in return for the President withdrawing two other nominees and Majority Leader Reid withdrawing his threat to employ the long-dreaded "nuclear option" -- a simple-majority vote to change Senate rules to reduce the votes necessary for cloture on the confirmation of executive-branch appointments. Both parties have threatened to go nuclear, so to speak, when they've had control of the Senate, but so far the real deterrent to doing so has been the thought that the other party can win back control, in which case the new minority will want all the tools it can use to "obstruct" the majority agenda. One party's obstruction is another's principled opposition, but it's easy to understand why Democrats believe that Republican obstructionism since Obama's election has been unprecedentedly unreasonable, due either to fanaticism or simple bad faith. Nevertheless, given an opportunity to change a rule designed originally to encourage the compromise of multiple interest groups, but which has grown increasingly subject to abuse by bipolar ideological partisanship, the current Democratic majority prefers to reserve the right to obstruct whenever it may prove useful to them. They can at least boast that the threat of going nuclear has achieved results, but Republicans inevitably will have their turn to crow the same way.

Now that the immediate crisis seems to be resolved, we should take a longer look at the usefulness and justice of cloture rules and other structures for the protection of electoral minorities. Some may argue that this sort of rule is exactly the thing needed in places like Egypt, where it is feared that an electoral majority (e.g. the Muslim Brotherhood) will use political power to consolidate power at everyone else's expense. The more pluralistic a country is -- and Egypt has apparently proven more pluralist than many outside observers suspected -- the more safeguards may be wanted against what might be called minimalist majoritarianism, or the tyranny of the 51%. The problem with such a concern for minority rights is the possibility, which we are obliged to consider, that not all minorities are equal. The problem with minoritarianism, as practiced by Republicans in the U.S., is the presumption that an electoral or ideological minority is morally or constitutionally equivalent to the minorities explicitly or implicitly recognized in the Constitution -- racial minorities, religious minorities, etc. In practice, this approach empowers parties, not people. It twists the respectable principle of freedom of conscience ever so slightly. We nearly all agree that people have a right to ideas and opinions, but political minoritarianism goes further to say, in effect, that the ideas and opinions themselves have rights. That idea is at the heart of the perpetual complaint that conservatives suffer discrimination within the "mainstream" media. That's unjust only if you believe that conservatism (or communism or anything similarly controversial) as a body of thought is entitled to representation in the media, in academe, etc. But if minoritarianism is a problem in government, there's no obvious remedy. The Senate's cloture rules don't recognize party or ideology; they only say a certain number of senators -- or sometimes a single senator -- can block votes from happening. You can end those rules but doing so might leave more authentic minorities without defense from oppressive forms of minimalist majoritarianism -- if Republicans retake the Senate in 2014, for instance. Authentic minorities, however defined, aren't directly represented in the Senate; senators represent states and parties. If we want to look out for the rights and interests of authentic minorities, perhaps we should rethink how the Senate is comprised and whom senators should represent. Filibusters might still happen in a non-partisan Senate, if one can be had, but one would hope that in at least some cases senators would have good reason for filibustering or joining forces to deny cloture. Purging the Senate of partisanship would really be going nuclear -- though not literally, one would hope.

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