More for the charge sheet: a pivotal special senate election

I can’t claim to know who will win the special election for the US Senate seat from Massachusetts formerly held by Ted Kennedy. However, I do know one thing: It is yet another item in the “charge sheet” against the American way of politics and policy-making that a government that, along with its legislative majorities, was endorsed by substantial majorities of the electorate could have its entire agenda pivot on the outcome of a special election for one seat in one house in one state just one year into its tenure.

It is worth noting that the current government is the first government in the USA to have popular majorities backing both it and its legislative majorities in quite some time (since 1976, I believe; no Republican Senate majority in at least five decades has been backed by a popular majority and Clinton never won over 50% of the vote). But that does not matter. One might think that elections should matter–that is, national elections–and that governments endorsed by majorities might be generally able to implement their programs. Well, at least that is what one might think if one were a committed small-d democrat.

That the Democratic Party is in such a fight for this seat–in Massachusetts!–is also a new item for the charge sheet against the party. How can it have missed the boat so badly with its policy agenda that it is struggling to hold a Senate seat in a state so reliably Democratic, till now, in Senate elections?

One item from the Globe and Mail suggests one reason why Republican Scott Brown is putting up such a challenge: He says that health care is a state issue. That is a defensible position–personally, I think it’s wrong, but it is defensible. The interesting twist is that various elements of the Democratic proposals resemble the healthcare policy put in place already in Massachusetts. That healthcare program was signed by a Republican governor (Mitt Romney, and that fact won’t help him with the national Republican primary electorate in 2012). So, in a sense, at least some swing voters in Massachusetts may be voting to protect what they already have from feared federal intrusion by a national policy. Ironically, that is how the Senate is supposed to work: as a forum for protecting state interests. Here we have a state that is seriously under-represented in terms of population per Senator, given that severe malapportionment of the institution. But in this one election, it will be seriously over-represented, as a relative few swing voters in one state essentially decide the fate of the governing party program, by bringing its majority below 60% in one house.

On the contest itself, Republicans chose for themselves about as good a candidate as they could have: Brown is very liberal for a Republican–even in the context of Massachusetts, where Republicans are in general about as liberal as they can be and still be Republicans. (Both points are made by Boris Shor, in a graph posted by Andrew Gelman at 538.)

On the other hand, evidently Democrat Martha Coakley is no exactly an exciting candidate, or one in touch with her voters–she evidently does not even know that Curt Schiling is something of a Massachusetts legend, suggesting he was a Yankees fan. If Coakley loses, there will be debate about how much candidate effects mattered and how much it really was a referendum on Obama’s policies, especially healthcare. But there is little doubting the impact. And, whatever one’s opinion of the policies or the current government, that just shows what an odd way we run this system known as American democracy.

26 thoughts on “More for the charge sheet: a pivotal special senate election

  1. A tangent: How, or by whom, are special-election dates selected in the US? Given that general election dates are fixed by statute, or even by the federal/ state Constitution, is there any discretion for, eg, the Governor/ Secretary of State/ Supervisor of Elections to pick a date, or is it automatic that the “by-election” [sic] is held on (say) the first Tuesday at least 28 days (or whatever) after the vacancy arises?

    I can see some rationale for by-elections in a system like the (pre-Blair) UK, where general elections are held only every 4-5 years, for the lower house only, and using single-ballot plurality (no runoffs, no primaries). I suppose even though the US has biennial elections, a Senate term is six years and that’s too long to let Deval Patrick (let alone Rod Blagojevitch) unilaterally hand-pick someone. (Why not keep “legislature elects a replacement for rest of term” as per pre-1911? Were the Seventeenth’s drafters so intent on eradicating all vestiges of “chosen by the Legislature thereof” that they could see only two extremes – election by the incompetent many or appointment by the corrupt [one] – as options for filling vacancies?


  2. Sorry, I should have written “why not have the Const say ‘provided that the legislature itself may make a temporary appointment until the People fill the vacancy’?”

    Was it assumed that legislators might make a rational and impartial judgment as to “how soon must a special election be held” if choosing between People and Governor… but might be biased if their own nominee gets to stay seated a longer time if legislators decide that a special election is too costly to hold for another year or two (or six)?

    Living under a Westminster system, I sometimes forget that in other democracies, it can happen that the legislature passes laws that the executive intensely dislikes…


  3. Also coming form a Westminister system (Irleand) it never ceases to amaze me how the loss of one by-election, embarrassing as it is, can cause such disarray. If every government in Ireland who lost a by-election ground to a halt…Does this mean a climate-change bill is dead now too? After all, the new Senatore “drives a truck”, etc.

    The merits or otherwise of the reform under question is one thing. But if American poltiicians have a reputation in their own country for being shifty and opportunistic, there’s a reason, and I think there’s going to be more evidence for that point of view in the next few weeks.


  4. One wonders, one really does, when US progressives are going to learn the lesson that the road to change lies through constitutional reform, not compromise with a republican party that rejects anything and everything. Gough Whitlam, prime minister here from 1972 to 1975, made himself infamous for his crash through or crash approach, but he did reset the political agenda for a generation.


  5. I agree with Alan’s last comment. We now have a situation in the US where governments can in fact enact a consistent policy agenda that essentially increases concentration of wealth, or does other right-wing things like invade other countries, but are incapable of enacting policies that reduce concentrations of wealth.

    For example, it was politically possible to repeal Glass-Steagle and otherwise set the table for the subsequent financial bubble, but apparently even after a crash its impossible to bring in new regulation, in fact the only response of both parties to a crash is bailouts for those responsible, not new regulation or even restoring the old ones.

    It does seem difficult to repeal existing progressive legislation, so the attempt to…er…adjust social security failed. But you can’t bring in new progressive legislation, and as long as you don’t touch existing entitlements you can do quite a bit of other stuff of an anti-progressive nature.

    So people favoring progressive policies, at least as far as economics is concerned, in the US should take a hard look at whether the US political system has evolved to a point where it simply can not enact them. And this is a big question, in political science and in practical politics terms. It means moving to a stance similar to the Cold War opposition parties in Italy and Japan, or the 2nd Reich SPD.


  6. On Tom Round’s comment, one of the mistakes of the framers of the US constitution was not making Senators recallable by the state legislators.

    It seems that Senators were conceived as sort of ambassadors for their states. If that was the case, then they really should have represented their state governments, so if the state governments changed they could recall their existing two Senators and select new ones. The US Senate would have evolved more in the direction of the Bundesrat, instead of that of an unelected second chamber with the same powers as the elected chamber. This also would have strengthened the state governments’ ability to resist federal encroachments.

    Just electing Senators didn’t fix the problem, and may have made it worse, because now you have two elected chambers, in both cases with elections made using singe member district plurality and the same electorate, but in one case from equally apportioned districts and in the other case from malapportioned districts.

    Something similar happened after Baker v. Carr and Reynolds v. Sims, instead of using the opportunity to do away with their upper chambers, states just created smaller duplicate versions of their lower chambers.


  7. Ed, Todd Zywicki (a prof who supports repealing the 17th – btway, 1913, not 1911, my bad) claims that in the 19th century a convention evolved that Senators would resign if their State legislature passed a bicameral “request”. Kind of like the evolution of the vote of no confidence across the pond. Of course one can’t imagine someone who’d spent $10 million on a popular campaign acceding politely to such a request.


  8. Alan at #4 and Ed at #5: Yes. I keep waiting for this realization to dawn on progressive/liberals/socialists/anti-Americans.

    Ed at #6: it seems you would favor the Bundesrat model. I think I might, too.

    As for the dates of special (by-) elections in the USA, I think it is entirely a matter of state law.


  9. John Stewart rather summed it up:

    If this lady loses, the health care reform bill that the beloved late senator considered his legacy, will die. And the reason it will die… is because if Coakley loses, Democrats will only have an 18 vote majority in the Senate, which is more than George W. Bush ever had in the Senate when he did whatever the fuck he wanted to.


  10. It seems there’s a (Constitutionally futile) move to use the New Jersey initiative process to recall Senator Robert Menendez. It seems obvious this would have no legal effect. OTOH, legally non-binding referenda/ elections were used in many States decades before the Seventeenth Amdt to advise the State Legislature which candidate to appoint to the Senate. OTOHA, some States (California?) bar initiatives that single out individuals by name.


  11. If US Senators were again appointed and recallable by their legislatures (ie, returning to the status quo ante of not 1912 but 1790), would there be any justification for having more than one per State?

    I mean, I can understand having 2 or more Senators per State if…

    (a) their numbers vary by population (eg, Bundesrat, 3 to 6), so the majority in California (whether the legislature, or the electorate at large) would get to appoint more Senators than their Delaware counterparts; or

    (b) Senators have a fixed term (with rotation), so that a State’s delegation could be split among different parties if majorities vary; or

    (c) they are elected by PR (Australia, South Africa).

    But what would be the point of having each State appoint 2 Senators, both nominees of the majority party at any given time, when they are going to block vote (or be recalled the next day if they don’t)?


  12. I suppose a 100- or 150-member Senate, composed of legislatures’ delegates, might better be able to staff its committees than a 50-member Senate. (One can see why the Framers didn’t want a 13-member Senate).

    As well, or instead, one might adopt the Bundesrat rule that a delegation can only cast its vote or votes as a unanimous bloc, and take the view that 2-0 or 3-0 consensus among the State’s “envoys” is less likely to reflect mere personal agendas of individual envoys than a 1-0 split. (Even with recall, some decisions might be faits accomplis so you still don’t want your delegates “freelancing” – an agent/ principal problem).

    I believe one reason the English boroughs and counties originally sent two knights each to Westminster was so they could split travel expenses (sharing a room at t’inn), travel more safely, and watch one another…


  13. An odd number of delegates makes much more sense if the votes are to be cast by states and the election is by proportional representation. We would not want a repeat of Maryland and Vermont in 1801. Incidentally, if a contingent election ever happens in the House again the same absurdities would happen.


  14. Yes, Alan, exactly. If PR is used (whether by direct election or in the legislature), it makes a huge difference whether there are 2 Senators or 9 per State.

    I suppose a Constitution could require PR when regional legislatures elect their delegations (as India, South Africa and Austria do), while still allowing recall – ie, 10% of legislators can demand a fresh election after a 90-day delay, while 60% can demand a re-vote immediately. (This would work with STV or a PR-list ballot, like German presidential electors – alternatively a constitution could give the right of appointment and recall directly to party caucuses in each legislature, although the courts might be reluctant to enforce this).


  15. It would be excessive pedantry to mutter that the counties sent knights to the medieval parliament while the royal boroughs sent burgesses, so I won’t.


  16. Excessive would be to mention barons of the cinque ports (and citizens, sent by the cities). Hopefully nobody will.


  17. Well, these titles only signify what the freemen of these boroughs/cities/cinque ports were called historically. In shortform all members not from counties are often grouped as burgesses, but otherwise “citizen” is included as one of the titles. I cannot claim to know that every city used it, though. I suppose that depended on their particular charter.

    Here is one source:

    Anyway, I have thought for a while that the European Parliament could benefit from having a Senate somewhat like the one outlined above. I think this could involve the national parliaments in European legislation better than the “yellow cards” and whatnot in the Lisbon treaty. Rather, there would be a representative democracy for parliaments as well as for the people. Having two chambers would also solve the Brussels-Strasbourg puzzle, with each city housing one chamber permanently.

    A European Senate would be apportioned based less on population than the other chamber, but would be smaller. In other words, a decent spectrum of opinion could be represented from each country in both chambers. At the same time you could also reduce the number of seats in the directly elected chamber compared to the present parliament, to a less unwieldy size.

    The members would be chosen by elected national parliamentarians unless something else was agreed to for countries where this did not quite fit the conditions, by some kind of open list D’Hondt or STV. I think a long term would be beneficial for the status of senators. The average term for national parliaments in Europe is four years, so eight year terms with halves elected every four years would be good.

    However: The national parliaments could recall their senators as easily as passing a national law. To attach a cost to this, anyone who had been senator in recent years would be ineligible for re-election. Actual recall would thereby be reserved for situations where senators were absolutely no longer representative, where the current national majority had few sitting senators to sacrifice, etc., situations like Italy 1994, France 1958 and perhaps some lesser ruptures. But the threat of recall would generally keep senators in close contact with their electorate, make senators anticipate reactions in advance, and perhaps persuade them to change their votes now and then.

    The supermajorities that are now required for legislation in the Council, could instead be exercised by the national senate delegations, i.e. if a majority in a certain number of delegations were against a measure, it would fail even if the majority overall were for it. This would be more democratic, and consistent with having legislators handle legislation. This would be a more unlikely reform though; but all of this is obviously unlikely, since the EU only just reached a point where they have a workable structure after so many years of uncertainty. It would be worse than starting over on the US health care reform, even.


  18. This is interesting. Usually, in the United States you have to go very far to the right before you’ll find people willing to entertain repealing the 17th Amendment. I would think that if we give each state one vote it no longer especially matters just how many Senators there are from any state; we could revert to the rule used in the old Congress under the Articles of Confederation. It seems highly unlikely the public would ever accept this change, but they might if it happened at the same time as another change I think worth doing for its own sake: the Senate’s concurrence would still be required for passage, but it would lose the power to initiate or even amend legislation. This would completely eliminate the conference committee and reconciliation. The advice and consent powers would remain with the Senate. I also think some sort of check on the judiciary should be vested in the Senate, and probably some means of forcing a “recall” election of the President, on the model of the one in California. It shouldn’t be too easy, but there should be some easier way to remove a President than impeachment, and some grounds for doing so other than “high crimes and misdemeanors”.

    If you want to fix the filibuster, the simplest solution is to go back to the old rule under which filibustering Senators had to actually spend the time talking.

    Note that I am NOT proposing any of this to pass progressive legislation. If that’s your main criterion, logically you should find some American version of Hugo Chavez more “democratic” than democracy itself. There’s no reason that a governing party backing off of or being unable to pass unpopular legislation is undemocratic; surely in a democracy we should keep at least one eye on what the people actually want. My concern is with better procedures in the future, for either party.


  19. In a more perfect world, both houses of the congress or parliament should be elected by proportional representation. I think much of the Bundesrat model that is being advocated in this thread actually flows from the difficulty of the 50 states/2 senators model. Even if you abandoned staggered terms 2 is a really bad number of deputies to elect by any form of PR. If you adopted it in the US you would be effectively applying the unit rule to senate elections so that many states would have a senator from each party and a few would have 2 from the same party. in Australia the territories each elect 2 senators by STV every 3 years and invariably one is Labor and one is Coalition. I doubt anyone really wants battleground states and lets-not-go-there states in a senate election.

    Increasing the size of the Senate significantly to say 5/50 is an impossibility. Adopting degressive proportionality in any form is probably equally impossible. So people end up thinking about completely different models. It is also not strictly accurate to say the German Bundesrat is not elected. The minister-president in each state is invariably one the stake’s delegates, often the state’s only delegate.

    For myself, I’d say introducing PR in the US House, which requires only a statute, is a higher priority because it is so much more achievable and a PR House would have a significant impact on the culture of the Senate.

    I’d also argue for some relatively simple reforms to the Senate’s internal procedures. It seems to me a 90 day rule for presidential nominations would be appropriate. I endorse Aaron’s idea that a filibuster should be a replay of Mr Smith goes to Washington rather than the filibuster by declaration that happens now.

    It also seems to me, although I realise its a much more drastic reform, that justices of the Supreme Court should require a supermajority for confirmation. That would take much of the sting out of judicial confirmation debates. Ditto either regular Supreme Court vacancies or a judicial retirement age, as happens in several US states.

    Judicial appointments, with rare exceptions, have never been controversial in Oz, but since the people voted a retirement age of 75 in 1987 governments have had had no temptation to appoint judges expected to last a long time on the court or judges of their own ‘stripe’ because the retirement age prevents long terms and you are unlikely to try for ideological longevity when that may just open the door to your opponents doing the same thing in one or two years when the next vacancy happens.


  20. I don’t think the U.S. Senate is very tractable to any sort of reform, actually. That’s why I’d rather shift the center of policy-making to the House. That also means taking power away from the President. I’ve said elsewhere on this blog that I think regulatory rulemaking authority should be transferred from executive agencies to House committees, which would require not only making House elections proportional (I favor some adaptation of STV to make it scalable to large magnitudes, which means incorporating lists), but making the House much larger, as in thousands of them. Most or all House business would have to be conducted online, perhaps partially using a wiki format.

    That, and the changes in powers I suggested for the the Senate, would decisively shift the main venue for democratic input, or the chief medium for transforming the public’s policy preferences into policy outcomes, to the House. The President may claim that unlike any given Congressman he represents the whole nation, but it’s a single-winner office. It’s a blunt instrument. The Senate, as we’ve been discussing, is rather poorly designed.

    I think 5 by 50 would actually be easier to get than an apportionment by population; the non-proportionality of the Senate is entrenched, every state must agree before it can be changed. Since the small states would lose power, they won’t agree. That’s enough already to prevent a regular amendment from passing. Unanimity will not happen. Any amendment reducing the power of the Senate is not going to pass for the same reason; it might be possible to trade off new powers for a loss of certain old powers. Fortunately, I think we can do that in such a way as to produce a more sensible overall arrangement. (Come to think of it, an upper chamber that can call a new election for the executive is probably a good idea for any system; if the Lords could dissolve the Commons Britain would be rid of Gordon Brown already.)

    You’re right to rank House reform over Senate reform. If we can’t get the House fixed, we certainly can’t get the Senate fixed.

    I saw a story about Chris Dodd suggesting a “break” from health care reform, probably the worst possible move for the Democrats right now; they’d be caving, then going back for more bloodletting. I think health care reform fails, not so much because of the filibuster (If I’m not mistaken, the Majority Leader could force an old-fashioned filibuster; I don’t think the Republicans have the fortitude for it — but neither do the Democrats), but because the Democrats have lost their nerve. Which is understandable, since a Republican just won the election to replace the last of President Kennedy’s brothers, in Massachusetts, by running against them on this issue. But it’s still a blunder: they’ve already taken the hit on health care, giving up just means taking a new hit for weakness.

    Their major blunder was in taking so long. I get the impression they really thought they could “educate” America into everyone seeing it their way. Really dumb. Health care reform starts with all the support it’s ever going to have. Nobody who opposes government intervention on principle is going to be persuaded, but a large chunk of the initial supporters will be persuaded that this particular reform plan is bad, for whatever reason. They should have had a draft version essentially ready to be adopted as law written a long time ago; they’d known they’d win everything in 2008 at least since 2006, and still it took all spring and summer and fall, and then some, to get their bills done in the House and Senate, and they still haven’t got a unified bill (and now will probably never have one).

    It should have been a lot simpler (which means more radical) than what they came up with. I’ve heard that software writers say that a complex system that works always evolved from a simple system that worked. The Democrats are proposing to take a complex system that doesn’t work and add a new layer of complexity. (Not to mention that a simple plan would be easier to defend before the public, both rhetorically and on the merits.) There should have been a few throwaway provisions to strike in exchange for getting moderates on board (abortion would be perfect for this), but the basic idea was to get it done while the wind was still at their backs.

    Republicans at least usually remember Truman’s “do nothing” trick.

    Anyway, what I was going to say is that in the picture that ran with the story Dodd looked like a little kid trying to look serious, except for having white hair. Senators are usually not very impressive figures.


  21. There is a clear analogy to enacting emissions trading in Australia where the trade-offs between interests have become so complex and overwhelming that it has become almost unpassable, at least in the present parliament. I suspect an ETS debate in the US Congress will make the healthcare debate look like a cakewalk.

    I guess there is a political attraction to both a carbon tax and a single-payer healthcare plan. At least they are simple systems, the benefits and which citizens will receive them are obvious and the policy debate does not drown in an ocean of detail.

    In 1993 the government ran an evilly effective line against an opposition VAT proposal by saying anyone who did not understand the VAT proposal should vote against it. It’s a great line but it’s also nonsense.


  22. Aaron, of course, I also advocate making the House the center of policy-making power (at the expense of the Senate, President, and also courts).

    As I talk about in the blog’s ‘Mission Statement’ this is where I cease being a neo-Madisonian and become a paleo-Madisonian, inasmuch as Madison’s original ‘Virginia Plan’ would have done just that!


  23. Colonial Australia was bedeviled by disputes between elected legislative assemblies and (life-appointed) legislative councils. I don’t necessarily oppose an upper house being empowered to call an election, but it would have to be a mutual-suicide rule where the upper house members would themselves have to face election and answer for their action.


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