Filibuster excesses cause Senate failure

The Keystone XL pipeline was defeated in the U.S. Senate, because only 59 of the 100 senators voted for the project.

That same day, a bill to reduce N.S.A. surveillance of Americans also failed to pass, because a vote to end debate on the bill only received 58 votes.

Wait a minute.  Where in the Constitution does it say that it takes more than a majority to pass a bill in either house of Congress?  Nowhere.

These two votes – based on the Senate filibuster rule that requires 60 votes to end debate – teach several lessons about how the U.S. government functions.  Or doesn’t function.

On the pipeline vote, the issue was less about whether it was a good idea and more about giving Sen. Mary Landrieu, a Louisiana Democrat facing a tough uphill fight in a runoff election, a victory to take home to the voters.

The senators knew that, in January, when there will be a lot more GOP senators, it will be easy to get the 60 votes and adopt the Keystone XL bill.  So the vote was pure political theater.

All 45 Republicans voted for the pipeline.  So did 14 Democrats, including Landrieu and 4 Democrats whose seats will be taken by Republicans next month.  Most of the remaining 10 Democrats are moderates, coming from states that lean Republican.

As usual, the Democrats showed far less party discipline that the Republicans.  Sen. Susan Collins may be a GOP Maine moderate, but she voted the straight party line.

And Sen. Angus King may be a Maine independent, who even considered joining the GOP Senate caucus, but he voted like a loyal Democrat.  He said the Senate should not vote on a mere interstate construction project, though it regularly votes on naming federal buildings.

On the N.S.A. spying bill, all Democrats voted to end debate.  So did three tea party Republicans, who dislike the government invasion of privacy.  All the remaining GOP senators voted, in effect, against the bill.  But there were not enough votes to end debate.

Both Collins and King voted the party line, opposed to one another.

The obvious conclusion is that the filibuster is not consistent with the majority rule the Senate is supposed to use.  Now that it is used virtually all the time on important bills, it’s a recipe for getting nothing done.

The filibuster means that either party, having 41 seats, can block any legislation.  The Republicans have been in that position and the Democrats will be there in January.  The minority can prevent any new legislation.

The rule requiring the 60 votes can be changed by majority vote, but such a change is unlikely.  Both parties want to retain the power for use when in the minority.

Why do senators vote the party line?  Their loyalty is rewarded by good committee assignments, distributed by party leaders who impose discipline.  As a result, they are loath to oppose the reelection of their leaders, because if they end up on the wrong side of that vote, they lose influence and power.

There is another lesson in the Keystone XL vote.  It shows that, without the filibuster, a later Senate could reverse a decision made by an earlier Senate.  Knowing that was possible could place limits on extremes in the first vote.  But that’s unlikely to happen as senators cling to the system they know.

In short, there is little chance the filibuster will disappear.  The Democrats did eliminate it for most federal judicial appointments, many of which were blocked by a GOP effort to keep President Obama from putting judges on the bench.

But it will remain for legislation.  And that can easily mean the federal government will continue to do nothing. 

This has been the least productive Congress in history in terms of bills passed.  At the same time, a post-Second World War record for low voter turnout was set when it fell to 36 percent in the recent congressional elections. 

Surveys show voters hold Congress in low esteem and want it to act.  Their failure to show up at the polls for congressional elections may have been more a statement about its ineffectiveness than a verdict on Obama’s policies, as his opponents claim.  This year’s low turnout is evidence of the alienation between the electors and the elected.

The insistence of the Senate to keep the filibuster only promises more inaction.  Senators become so preoccupied by Washington games and their own political survival that the gap grows larger between the federal government and what the American people want. 

Obama’s immigration move and partisan war

In just 30 years, the U.S. population will increase by 84 percent, mostly resulting from a massive and wave of immigrants.

The ethnic make-up of many parts of the country will change.  The economy will experience major growth, though it will suffer through deep recessions.  The income gap between the wealthiest and the poorest people, many of them immigrants, will widen, and only small part of the population will control most of the American economy.

This is not today’s America.  That was the United States in 1880.

Skip ahead exactly a century.  In the next 30 years, the U.S. population will increase by 36 percent, including 10-11 million immigrants who do not enter the country legally.

The ethnic make-up of many parts of the country will change.  The new arrivals will take unappealing jobs, shunned by citizens, as they escape economic privation and physical danger in their home countries.  They will rise in their new freedom.

The economy will experience steady growth, though it will suffer through a deep recession.  The income gap between the wealthiest and the poorest people will widen, and only small part of the population will control most of the American economy.

In both periods, many U.S. citizens resent the immigrants and want them excluded from the country. The difference between the two periods is that, during the first, the United States did not limit immigration while in the second it did.  Presidents George W. Bush and Barack Obama each expelled about 2 million illegal immigrants.

Still, there are an estimated 11 million people in the country who came across the thousands of miles of American borders that are virtually impossible to patrol or wall off satisfactorily.

Their presence is a tribute to the appeal of American political and economic freedom.  But these so-called undocumented immigrants present both opportunities and challenges.  

Many immigrants provide essential contributions to the economy, performing necessary but often undesirable jobs.  As they join the economy, they become consumers.  As a group, consumers support about two-thirds of the economy, so adding to their number promotes growth.

But the new immigrants can impose costs on the economy as well.  They require public services ranging from education for their children to social welfare assistance.

And they are in the country without legal right, a fact that concerns some law-abiding citizens.  Each year, they become more integrated into American society.

Few Americans believe it would be possible to send all 11 million out of the country and back to their places of origin.  But many believe that people who broke American law should not be rewarded with citizenship.

The president and Congress understand the complex issues and the inevitable need to solve the immigration problem without massive deportations.  But partisan politics, pandering to one side or the other and a lack of leadership has blocked agreement on a solution. 

Now, with no more elections left in his term, Obama proposes to allow a large segment of the new immigrants by directing his administration not to seek to deport them.  Using his discretion about which lawbreakers to pursue, the president could set a dangerous constitutional precedent.

While allowing millions to stay in the country and work, the federal government will seek to block further illegal immigration and to deport recent arrivals.  In Obama’s view, some action must be taken, because the Republicans choose to do nothing.

Congressional Republicans are furious, and charge Obama with abusing his powers as the chief executive by allowing immigrants to remain in the country who should be deported.  But they must know that mass deportation is both impossible and undesirable for the economy.

The president may gain support for the Democratic Party from the growing Hispanic community and may even be taking the kind of action that is inevitable.  But it amounts to another hostile move in the partisan conflict paralyzing Washington.

Now, it looks like the GOP has a choice between a counter attack and making a counter proposal.  So far, the Republicans have offered little more than proposing tighter border controls.

Instead of continued partisan games with an issue of great national importance, the two sides should sit down and try to negotiate.  And the public should be able to understand which side is willing to compromise to resolve the issue before we arrive in another election year.

The lesson of this year’s elections is probably less that the voters rejected Obama than that they urgently want divided government to work.  Here’s an immediate chance to respond to that demand.

Should we abandon plurality elections?

Last week, I wrote that increasingly major elections are won by pluralities – winners having the most votes – rather than majorities – winners having more than half the votes.

The column drew many thoughtful responses, which prompt further consideration of the problem of plurality winners.

The threshold question is whether we ought to require majority winners.  Is it right that a person might win a three-way election with 34 percent of the vote?  Is that the same problem as when a candidate fails to gain 50 percent, because of a fringe candidate who gets, say, three percent?

The most frequent answer is that both risks are acceptable.  Throughout American history, the system known as “first past the post” has been used.  With the use of single-member districts, this system promotes two candidate races.  People understand that voting for a third party candidate could amount to a vote for the winner. 

But there have always been some multi-candidate races, and people have accepted results when the winner did not receive a majority.  Because some people wish to make a statement with their votes, rather than picking a winner, there will always be multi-candidate races.

So most likely, nothing needs to be done.

Some comments suggest I got the intentions of the Founding Fathers wrong. 

In my view, the acceptance of plurality winners is probably not what the Founding Fathers intended.  In The Federalist, those arguing for the Constitution opposed the creation of “factions,” hoping instead for general accord.

But they had to admit that, if there were elections, there were likely to be two sides.  During the debate on the Constitution itself, there were already two organized and opposing groups – Federalists and Anti-Federalists – of almost equal strength.  

But I concede they saw multi-candidates races, for the First Congress, whatever their preferences. 

 

The presumption of two parties and two candidates has carried over until today.  For example, look at the composition of the Federal Election Commission with its equal representation of two parties. 

If people reject plurality winners and want only majority winners, the only way to do that is to have runoff elections with two candidates.

Ranked choice voting cannot produce that result, because voters may end up electing “everybody’s second choice,” even though that candidate received fewer first place votes than another candidate.

While ranked choice allows for an artificial runoff and costs less than running a real runoff, it lacks the character of a political campaign in which candidates try to convince voters, some of whom did not even participate the first time around, to support them.

In fact, ranked voting is much like a plurality election in which voters supporting weaker candidates do not seem to participate in the choice between the two front-runners.  In ranked voting, they are similarly simply deleted if they did not support one of the two front-runners.

As noted earlier, in the Portland ranked voting contest, 18 percent of the voters took no part in the ultimate choice.  Their votes were thrown away.

If we want those people to participate in the final choice, then a real runoff is necessary.

It seems clear that the discussion of making Maine the first state to use ranked voting for major elections is based on the last two gubernatorial elections.

The theory is that, if voters for Democrat Libby Mitchell in 2010 had been allowed to express a second choice, independent Eliot Cutler would have been elected.  Republican Paul LePage, the plurality winner, would have been defeated.

In 2014, if voters for Cutler had been given a second choice, they might have voted for him with a second choice for Democrat Mike Michaud with LePage the loser.  In fact, Cutler may have believed that, with that kind of voting, he would have finished second and won with Michaud’s second choice votes.

Cutler voters might have helped make that possible by refraining from casting second choice votes for anybody.

On the other hand, understanding he was sure to lose, Cutler could have thrown his support to Michaud.  Some Cutler voters reacted to his “long shot’ statement; perhaps more would have reacted to an outright withdrawal. 

Even if diehard Cutler supporters had declined to vote or voted for him on principle, they would have known they were no longer taking part in the real choice, and the winner would have had a majority of the voters trying to elect a governor.

Ranked choice voting is a poor substitute for real democracy.  If we decide we want only majority winners, they should be real winners of real elections.  Just because ranked voting costs less than a runoff is not good enough to abandon majority rule.

However, it’s doubtful we insist on majority winners.  Americans have always accepted plurality winners and are likely to continue to do so.

In addition to my weekly post based on my newspaper column, I add an occasional mid-week post on a current issue.

Should voters get a second chance in three-way elections?

In ten states this year, real multi-candidate races developed for U.S. senator or governor. 

The winner stood to be elected with less than a majority of the votes.  And, without the third candidate in the race, the first-place finisher might have lost.

That’s nothing new in Maine.  There were at least three serious candidates in nine of the past 10 elections for governor.  There were majority winners in only two of the 10. 

Three-way races for major office run against the grain of the American electoral system.  The Founding Fathers envisaged two candidates running with the winner gaining majority support.

In a system based on two parties, a third candidate often produces minority rule.  The average victor in races without a majority winner received less than 43 percent.  Independent Angus King won in 1994 with only 35 percent of the vote.

In such races, one of the candidates, driven by ego and momentum, can turn out to be nothing more than the spoiler, distorting the electoral outcome.

We have three-candidate races, because one of the major parties splits into factions or a candidate offers a non-partisan alternative.

With the chances of multi-candidate elections growing, especially because of splits in the GOP, the time may have come to find a new way to deal with multi-candidate races.  Three alternatives have emerged.

The first is to do nothing in the belief that, even with its drawbacks, the system functions well enough.  Most states do that. 

Or one candidate, facing the possibility of being no more than a spoiler, even inadvertently, can drop out.

In this year’s Kansas U.S. Senate race, the Democrat withdrew to avoid splitting the vote against the Republican incumbent.  The Democrat also pulled out of the Alaska governor’s race, leaving it to a moderate Republican and his conservative GOP opponent. 

But the Kansas and Alaska cases are unusual, making the chances of three dropping down to two unlikely as a pattern.

The preferred alternative, used in 11 states, is the runoff election.  The two top vote getters face each other in a second election a few weeks later.  That ensures a majority winner, who will have won a real head-to-head election contest.

Runoffs, even where possible, are relatively rare.  Perhaps voters, aware of the possibility, cast their ballots for one of the obvious front-runners.  This year’s sole runoff will be in the Louisiana U.S. Senate race.

The third alternative is called ranked voting.  Voters can designate their second choices.  The votes are recounted many times, and each recount eliminates the lowest vote getter and redistributes second-choice votes from that candidate to other candidates.

A popular second choice could defeat a candidate who had more first-place votes in the actual vote.

No state uses that system, but a few municipalities, including Portland, Maine, use it in races that are likely to have several candidates, not just three.

In Portland’s 2011 election, it took 15 rounds of recounts to come up with a mayor, the candidate who had led from the first count. 

In the final recount, 18 percent of the votes did not count at all.  In other words, for there to be a winner, almost one-fifth of the voters had to be eliminated.  In a runoff, their votes could have changed the outcome.

Used in Minneapolis in 2012, the mayor’s race was won after 33 recounts by the same person who had been the winner on the first count. 

Ranked voting may help in races with many candidates, but in congressional and governors elections, it might encourage even more candidates and further splintering.

Ranked voting is difficult to understand and can be gamed.  Voters are not required to place all candidates in rank order, so supporters of “everybody’s second choice” can themselves provide no second choice.  That’s called “bullet voting,” and democracy may be the victim.

The resulting mathematical games can end up far from majority-rule democracy.  In fact, the winner will be a candidate who did not have majority voter support, just as happens today.

The main merit of ranked voting is that it costs less than runoffs.  You pay less, but you get less.  Runoffs allow voters to deal anew with a changed political situation.  And runoffs, unlike ranked voting, are easy to understand, because they are simple democracy.

Ranked voting sounds appealing.  It can work when there are so many candidates the vote is badly split.  In three-candidates races, it cheats voters of a real choice.

Real democracy is worth the extra cost of a runoff.