I know that the current discussion of Senate rules and the general functioning of our government is currently intertwined with the health care reform (HCR) debate, and therefore most people are forming opinions based as much, if not more, on their views on HCR than they are about the broader issues. I am primarily concerned with a) basic literary about our system of government and, b) with making a serious case that there are problems with the way our system works in the hopes of making a case for reform.1
All of this is of special interest to me as I am currently working on a collaborative project on the the US in comparative perspective to other democracies and specifically how the US differs—specifically in terms of institutional design. I also have long noted that the general literacy if the population on matters of their own government is often woeful (and that includes members of the press and of government itself).
Let’s focus on point “a” for the moment, turning specifically to Senator Judd Gregg who said the following on the floor of the Senate (Senator Gregg’s Senate Floor Remarks on the Democrats’ Health Care Bill and Reconciliation):
under the Senate rules, anything that comes across the floor of the Senate requires 60 votes to pass. It’s called the filibuster. That’s the way the Senate was structured. The Senate was structured to be the place where bills which rushed through the House because they have a lot of rules that limit debate and allow people to pass bills quickly, but they don’t have any rule in the House called the filibuster which allows people to slow things down.
The Founding Fathers realized when they structured this they wanted checks and balances. They didn’t want things rushed through. They saw the parliamentary system. They knew it didn’t work. So they set up the place, as George Washington described it, where you take the hot coffee out of the cup and you pour it into the saucer and you let it cool a little bit and you let people look at it and make sure it’s done correctly. That’s why we have the 60-vote situation over here in the Senate to require that things get full consideration.
First: The Filibuster is a Creature of Senate Rules, not the Constitution. as I was trying to note the other day: the filibuster/any kind of supermajority requirement within the Senate is not a constitutional principle. It is, as Gregg initially notes (but then contradicts), based on the rules of the Senate.
Regardless of what one thinks about HCR, the filibuster, the nature of the Senate, or whatever, we need to understand the proper foundations for what we are talking about. Even if one thinks that the filibuster and other mechanisms of minority veto in the Senate (like blocks and holds, a la Bunning and Shelby) are good things, it remains important to know that they derive from Senate rules and traditions, not from the Constitution nor from its Founding Moment.
Second: Checks and Balance is About Legislative-Executive-and Judicial Power (It is not about intra-legislative relations). This is a mistake that people make all the time, i.e., stating that the relationship between the House of Representatives and the Senate is part of checks and balances. Checks and balances, properly understood, has to do with the relationship of the three branches of government. In the legislative process proper that has to do with things like the ability of the executive to veto legislation and for the legislature to have the power to override said veto. Since both chambers of the congress sum together to make one institution that controls one branch, and contains one type of governing powers (legislation or law-making) we aren’t talking about checks and balances when the two deal with one another. They are two halves of one whole.
Third, Rather, the Topic is Symmetrical Bicameralism. The slowness built into our system of legislating (and therefore of governing in general) is not the filibuster rule, various Senatorial privileges, nor specifically checks and balance (although that slows things down as well), but it is bicameralism. Specifically it is what is called symmetrical bicameralism where both chambers have identical legislative powers—i.e., in the simplest of terms, all legislation must pass through both chambers in identical format. Not all bicameral legislatures work that way.2
It is the need to debate and vote on legislation twice that slows down the process along with the fact that any difference between House and Senate versions having to be reconciled. It is that design, not the filibuster or anything Constitutionally-ordained to be different about the Senate that creates the cup-and-saucer bit that Gregg describes.3
It is worth noting in a comparative sense, that symmetrical bicameralism is not the norm amongst democratic states. It is predominantly (although not exclusively) found in western hemispheric democracies that are modeled after US institutions.
Fourth, Parliamentary Systems Work Quite Well. Gregg makes an especially ahistorical claim about the Founders and parliamentary systems. When he claims that the Founders had seen a parliamentary system and that it “didn’t work” he is wrong on multiple levels. First, in the late 1780s there really weren’t any functional parliamentary systems that are comparable to the modern variety. Yes, the UK has a parliament, but they also still had a monarchy that held actual power. The British Parliament of 1787 was a very different institutional that the British Parliament of 2024.
Further, if one was to go back and look at what James Madison4 actually wanted to do, one would find that it looked far more like parliamentary democracy than presidential democracy. 5
It should be noted that parliamentary system work quite well. As Matthew Yglesias notes in response to Gregg’s statements, there are an awful lot of such systems globally and presidential systems are only dominant in the western hemisphere (again, as with bicameralism, a result of Latin American states using the US Constitution as a model).
And Finally, Yes, the US has a Presidential System. This has nothing to do with Gregg directly, but in response to Yglesias’ discussion of parliamentary v. presidential systems, Jonathan Bernstein (blogging at Sullivan’s site) states:
But the United States doesn’t have a "presidential" system; it has a system of separated institutions sharing powers, with a strong president and a transformative (bicameral) Congress and independent courts. Generally, lumping the US with presidential systems tends to be misleading.
I am really not sure what Bernstein means. Not only is it proper to call the US system a “presidential” one, it is the quintessential presidential system. Indeed, separation of powers is the hallmark of presidentialism, while fusion of the legislative and executive is the hallmark of parliamentary systems.
At any rate, if one looks at the comparative politics literature, one will find that the US is a presidential system, and the way Yglesias uses the terms in his post conforms to the standard set of possibilities (i.e., parliamentary systems, presidential systems, and semi-presidential systems, also called presidential-premiere systems).
Indeed, here’s a comparative run-down:6
- Even if preferring reform in a Quixotic preference. [↩]
- e.g., the French Parliament made up of the French National Assembly and Senate, or even more extremely: the British Parliament, with the House of Commons, which is almost a unicameral legislature by itself, and the House of Lords, which really only has delaying powers. [↩]
- I must confess, that little story—which can be read in full here—has always seemed weird to me to the point that is almost certainly has to be apocryphal. First, coffee is supposed to be hot and second, who pours coffee into a saucer to cool it off? Just wait a few minutes and you’ll have cooler coffee and less mess. [↩]
- You, the “Father of the Constitution,” co-author of the Federalist Papers, and one of the greatest thinkers amongst the Founders and all that. [↩]
- See the Virginia Plan wherein the House would have been elected by the people and the Senate and executive would have been chosen by the House. [↩]
- Source: David J. Samuels and Matthew S. Shugart, Presidents, Parties, and Prime Ministers,Cambridge University Press (in press). [↩]
March 7th, 2024 at 1:43 pm
Well said, Steven. I agree with pretty much everything you said there. (Hey, I have an idea: let’s write a book about this!)
One point that is small in the overall discussion about the US, but important to point out for comparativists in the audience. It is a myth (and one I have been in the past guilty of propagating) that the UK House of Lords “really only has delaying powers.” In fact no bill can become law without passing the Lords, unless the House of Commons invokes the Parliament Acts, which allow it to insist on its own version of a bill after one year.
I do not have an exact count on how often the Parliament Acts have been invoked, but the number is less than a dozen times in 100 years. Only once or twice during the Blair years, despite that recent government’s ambitious reform agenda and lack of a cooperative majority in the Lords.
Most of the time, the Commons bargains with the Lords and reaches a compromise. Of course, this is bargaining that takes place in a metaphorical room in which everyone knows that the government has this BIG CLUB behind the door. But the costs to the government of using it frequently would be far worse than the apparently very low costs of the minority in the US Senate using its filibuster privileges.
So in the end, this is a FAR CRY from the power that the US Senate has (and would have even if it repealed its internal rule allowing filibusters). But it is also more than mere delaying power, because the Lords regularly force the government and Commons to drop controversial bills or substantially modify them and not merely delay them.
March 7th, 2024 at 1:44 pm
Oh, and even among those second chambers that have mere delaying power, I think one year before the first chamber can invoke an override is one of the longer periods among bicameral legislatures. (This sort of detail is in Tseblis and Money’s appendix.)
March 7th, 2024 at 10:35 pm
While I agree with about 99% of the post, I would point out that Madison in Federalist 51 does argue that having two chambers in the legislative branch has the desirable effect of restraining popular impulses and ambitious politicians: “In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.” But it isn’t the main thrust of his argument, since (after all) this type of separation of powers was already in use in most of the states and in Britain, and thus familiar to his readers, whereas the idea of separate branches of government with independent legitimacy was more novel.
March 8th, 2024 at 8:24 am
Chris: no argument here. I just wouldn’t call that checks and balances.