Wednesday, December 16, 2009

Is the veil available?

I haven't commented here on the filibuster angle in the healthcare debate. I do believe that the rise of the Senate filibuster as a routine rather than extraordinary legislative tactic is among the factors making the U.S. both (a) ungovernable and (b) likely to end up defaulting (at least implicitly) on the national debt. But it's hard for me to avoid entirely feeling differently about it in 2009 than, say, 2003, especially given that there would be a better case for it if legislative behavioral norms kept it as a rarely, rather than a routinely, invoked minority tool.

Nicholas Stephanopoulous has a piece arguing that, if everyone agrees that the filibuster is terrible but no one wants to be the first to give it up, Congress should simply pass a rule (which both parties might be able to support) abolishing it as of, say, 2017. He thanks John Rawls for coming up with the "veil of ignorance" concept that we can use to motivate people to choose things for the general good once they don't know if they would win or lose in the particular circumstances.

Never mind that it was actually the utilitarian John Harsanyi who came up with the veil of ignorance, which Rawls egregiously misused by making an ad hoc assumption of infinite risk aversion. (Under which, who knows if the parties would agree to get rid of the filibuster, even if otherwise favorably inclined? With infinite risk aversion, they might focus just on the worst case scenario where they were in the minority and wanted to block the other side.)

With that bit of snark out of the way, Stephanopoulous' suggestion is an interesting one. Although, I wonder if pure Senate majoritarianism is actually the best rule - the problem is that we've gone too far in the super-majority direction (given current political dynamics, such as Republicans' 100% party line voting and commitment to obstructionism).

But a further problem is that the veil of ignorance may not actually be available. Repealing it now, even to take effect in 8 or more years, in a sense condemns it and could affect the current climate of opinion when it is used. Thus, today's Republicans, even in the counter-factual where they were sane and interested in governance, could well conclude that this would undermine their current ability to use it, whereas Democrats might support the change today based on the same calculation.

A still further problem is that, if Republican minorities are more willing and able to filibuster than Democratic minorities - being more of a block voting unit and also more unwilling to cooperate with a president from the other party, as I think no reasonable person can deny the Republicans are - then they may actually favor it from behind the veil, however willing they might be to get rid of it for short-term reasons when back in the majority.

1 comment:

indyresolve said...

I wonder if pure Senate majoritarianism is actually the best rule - the problem is that we've gone too far in the super-majority direction (given current political dynamics, such as Republicans' 100% party line voting and commitment to obstructionism).

I'm actually in favor of some super-majoritarianism in the Senate, though I'll concede that in some environments, perhaps including the present one, that a 60-vote requirement can yield California-style ungovernability as often as bipartisan compromise.

But the reason I still favor it is that I have little confidence I can rely on the judiciary to restrain the commerce-clause-enabled omnipotent state. A supermajority requirements acts as an inferior substitute, but it's better than nothing.

As contentious as our political situation is, I don't want fleeting and frequently-reversing bare majorities to have the power to do almost anything to the entire nation (though, again, I would like solid 55+ majorities to be able to occasionally do something)