Gun Sales and Senate Irrationality

“How could the Senate vote down something supported by 90% of the public?”  This is a question asked across Facebook this morning, urged on by President Obama’s statement to similar effect.

How?  It’s actually easy, and happens more often than we realize, on much more mundane and even less controversial measures.  It’s because the senate is broken; I don’t think the gun lobby is uniquely to blame.  All lobbies exploit the senate to protect their sectarian interests.  The real problem is that we have allowed the senate to work like this.54 senators voted in favor of an amendment to require additional gun sales to be subject to background checks (both on the internet and at gun shows).

Those 54 senators represent these states (I’ve counted 1/2 for split states, and spelled out the M states so you don’t get confused):  WA, OR, CA, CO, NM, 1/2 Montana, 1/2 SD, Minnesota, 1/2 AZ, HI, 1/2 IA, 1/2 Missouri, IL, 1/2 IN, 1/2 LA, Michigan, 1/2 OH, WV, VA, 1/2 NC, 1/2 FL, PA, NY, VT, 1/2 NH, Maine, Massachusetts, RI, CT, NJ, DL, Maryland.

Using 2010 census data, how much of the population do those 54 votes represent?  Assuming 1/2 of the population whose states split their senate votes, we get the following number of people:

7+4+37+5+2+.5+.5+5+3+1+3+3+13+3+2+10+6+2+8+5+9.5+13+19+1+.5+1+7+1+4+9+1+6 = 192 million (the states’ populations are listed in the same order as the states above, rounded to the nearest million).

That’s 192/308 million people – 62% of the population.  Please don’t misread what I intend by this number – of course each of those states’ populations are not 100% (or 50%) in support of this measure, the point is just how many of the country’s representatives, in terms of raw population, voted for this measure.

That means 54 senators representing 62% of the population voted to increase background checks, and therefore, it did not pass.

This is doubly irrational.  Here are the two obvious ways this makes no sense:

First – 54/100 senators voted in favor.  Filibuster rules being what they have now become – essentially a random decision on the part of Senate Republicans, that any piece of legislation needs a 60/100 votes to pass, something which has no basis in the constitution – a majority of the legislative body voted in favor of a routine amendment and therefore it “failed.”  This makes no sense.

Second – those 54 senators represent 62% of the population or thereabouts.  But because the senate exists in the first place (and fine – that *does* have a constitutional basis, even if a destructive and unnecessary one that was to some extent put in place to maintain slavery) – 62% of the country’s population is not enough, simply because of the fact that the other 38% lives in states that get 46 votes.  It’s well documented, but just remember – every voter in Wyoming is overrepresented in the senate; every voter in New York is underrepresented, just because of what state boundaries existed at the time of the country’s founding and what was necessary to get those states to ratify the original constitution.

To repeat – let’s stop blaming the NRA.  They (and other lobbying organizations) advocate for what they want using a system that allows them to fairly easily achieve their ends. Clearly most people reading this believe them to be wrong (as do I) but my broader point is, they’re not a majority interest, and yet are able to achieve their aims.

We have to fix that system.  So far as I know, it has no analogy in any other affluent constitutional democracy on this planet.  Why are we continually so surprised when a broken system fails to work?

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9 Responses to Gun Sales and Senate Irrationality

  1. Carrie Neill says:

    Josh-
    Any suggestions? I’m interested to hear what you think.

  2. Josh says:

    You mean suggestions on how to fix the problem?

    Obviously getting rid of the senate would be a good idea, but probably impracticable.

    Getting rid of the filibuster would also be a good idea, and I don’t think it would be so hard to get rid of. I just think Harry Reid is a coward. But he did change his mind on the assault weapons ban, so maybe it’s possible. I just think he’s too invested in the institution and the power it gives him to actually propose or implement change.

  3. Collette Broady says:

    Thanks for writing this Josh. I agree entirely, including the piece about getting rid of the Senate. It’s undemocratic. Also, I wish in his remarks that Obama had spent more time on the problem in the Senate, explaining what the filibuster is and how it gets used. I think if people really understood it, they’d be pissed enough to do something.

    Also, did you watch the video of his remarks? Why can’t Joe Biden stand still and look like he’s actually paying attention to what Obama says?

  4. Sam Brown says:

    As I understand it explaining the Senate’s existence simply by pointing to slavery and the politics surrounding ratification ignores its role in advancing certain counter-majoritian purposes of the constitution. 62% of Americans being in favor of something does not necessarily mean it is a good thing, or a constitutional thing. Colorado denied homosexuals the right to use discrimination laws by referendum. California denied them the right to marry. The fact that both these measures were struck down by the courts points to the success of the court’s role as a counter-majoritian force as envisioned by the constitution. Nevertheless the judiciary was not the sole mechanism envisioned by the framers to protect against the tyranny of the majority, or the tyranny of moment. The presence of the Senate and the filibuster may frustrate us when we are sure the 62% are right but they have a role, or should have probably had more of a role in stopping things like the patriotic act. Get rid of the Senate sounds a bit extreme. Also consider the re-districting effects on the House as evidence of the ability to manipulate that body’s representative power. So unless every law, or bill is put to a nationwide referendum (which would be frightening considering the Colorado and California examples) we need the Senate at the very least as a check on the crazy as all hell House. I guess the alternative would be legislation by national referendum under the watchful eye of a partisan Supreme Court (whose makeup can be based on arbitrary things like when a justice dies or retires and who happens to be president.)

  5. Josh says:

    Sam –

    I don’t dispute that antimajoritarian forces are sometimes important. As you point out, they are not confined to the judicial branch (or the executive). It makes sense for congress to have some mechanisms that prevent hasty actions. Of course when one’s opinions accord with the majority, one will underestimate the wisdom of maintaining those antimajoritarian forces.

    That said, there are rational and irrational checks. A check that requires 60% senatorial approval for anything is irrational. It’s also not rooted in anything more than the last few republican senate delegations’ decision to act like this. The numbers of filibusters that have been threatened has increased exponentially over the past 20 years, and accelerated especially in the last 10. The democrats simply didn’t act like this, nor did senators much before the 80’s, except on some very rare occasions. Yes, they did filibuster things, but it was not routine. The filibuster didn’t even exist for the first 80 years or so of our country’s history.

    Also – it’s possible we have overestimated the problems with majority rule and built a system that over-checks against it. Like I said in my initial post, none of Europe’s democracies do this. This has not lead to extremist takeover in any of those countries. What it has done is allowed legislation actually to pass, so that it can be tried out, and modified or removed if it doesn’t work. We have elections every two years, and also two other branches of government, as well as many checks that exist within the legislative branch which would remain in place.

    I challenge you to point to an instance where a filibuster averted a negative consequence. It did not prevent the Patriot Act, it did not prevent the Iraq war. It did prevent the enactment of more meaningful health care legislation, slowed down civil rights legislation in the 60’s, etc.

  6. Josh says:

    Also – I obviously didn’t mean to assert that because the majority supported something, it was right or constitutional. But the almost-contrapositive of that statement is *definitely* not true – i.e., that if something has not passed the senate, that it is somehow wrong or unconstitutional. I was just answering the question of why something with majority support didn’t pass – because of the senate and its brokenness.

  7. Nates says:

    It’s a tricky issue. We all recognize that some constraints on simple majority rule are needed, and we also recognize that this can go so far as to become undemocratic. But what’s the right balance: 2/3? 60%? Maybe 54.7%? I don’t see how there’s going to be any principled place to draw this line. (If there are such principles, I’d love to hear them!) So I suppose it simply becomes a matter of what number produces effective government. But then you have to find a way of defining effective government that doesn’t appeal circularly back to representing the will of the people. And now my brain starts to hurt!

    I know someone who works on similar issues. I’ll see if he can chip in.

  8. Josh says:

    I wouldn’t think the line would be drawn by number. Obviously majority rule is an accommodation to practicality and even 50%+1 is “arbitrary” but it would be tough to come up with something less arbitrary than majority rule.

    The key is to find a process that gives sufficient recognition from before the fact, not set up arbitrary supermajority rules. I repeat that the 60-votes-for-cloture system has no historical or theoretical basis in anything other than Republicans cowing the democratic majority. If the idea is to moderate majority opinion, even without a bogus senate supermajority requirement, there is the very presence of two legislative bodies, committees in each, an executive branch veto, and a deeply accepted tradition of judicial review, never mind regulatory review and the elections that place people into office, which are frequent, though not as competitive as they need to be, especially in the house.

    If any 40 senators can say no to anything without even having actually to filibuster, we just have a government that can be hijacked fairly easily at any time. I also repeat – there are no good examples of the filibuster helping to prevent anything anyone is willing to say is bad.

    Quite honestly I would rather that each party had an opportunity actually to govern, and let its ideas be tried out in a less restrained way, subject to all of the above constraints, which all are regularly used by minorities seeking protection.

  9. Josh says:

    Nate Silver’s take on the same vote (asking a slightly different question) – pretty interesting:

    http://fivethirtyeight.blogs.nytimes.com/2013/04/18/modeling-the-senates-vote-on-gun-control/#more-39707

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