Yes, Madisonian Democracy Protects Minorities

Matt Yglesias argues that the filibuster protects the status quo (true!) and that it doesn’t protect minorities (false!):

Most people aren’t Jehovah’s Witnesses, and Jehovah’s Witnesses are mildly annoying when they go door-to-door prosyletizing, so you might see a proposal to trample on Jehovah’s Witnesses interests by banning them from knocking on doors. In this case, the filibuster would defend the interests of a minority group because it makes it harder to pass laws.

On the other hand, most people aren’t gay and some straight people think gay sex is immoral, so gay people may be subject to discrimination in employment and other venues. You might see a proposal to advance gay interests by banning employment discrimination on the basis of sexual orientation. In that case, the filibuster harms the interests of a minority group because it makes it harder to pass laws.

Two things. One is that Yglesias places the whole debate in the context of minority groups. That’s fine, but it’s not the whole question; there’s also minority opinion and interests. Indeed: the real issue here is probably majority and minority opinion, more than anything else.

And then…well, yes, it’s not only true that Madisonian democracy has a status quo bias, but it’s one of the chief drawbacks of the system. I absolutely concede that.

But his example here shows why we it can be more helpful to think about majority and minority opinion. Who is the minority in his example of discrimination against gay people? It’s trickier than he thinks. If the group is just LGBT people, then they surely are a minority…but if they are a minority, then their efforts to affirmatively pass laws is going to be unsuccessful in a plain majoritarian legislature because they won’t have a majority of the votes!

On the other hand, if the group in question is, say, all tolerant people who also believe in government intervention to protect against discrimination, and if that group is in the majority…well, then, it is absolutely true that the filibuster (and other Madisonian devices) might prevent them from passing laws. Absolutely true — but not a case in which “the filibuster harms the interests of a minority group.” Because in this case, the filibuster is harming a majority — the people (assumed to be a majority) who want to pass the bill. The minority are (if the facts are as stipulated), whether Yglesias likes it or not, the people who hate the gays (and/or hate government intervention).

If, however, we want to only talk about minority groups, which is also reasonable, then we’re in a bind. Because in that case lots of people, and almost certainly the plurality, don’t care much either way, which means that both gay people and bigots who hate them are minorities! One or the other will be shafted. And, while one might protest that haters aren’t really a “group,” in fact we’re probably talking here about members of certain churches (who think of their political action on this issue as a manifestation of their religious belief). We all agree, I would think, that church members are a group.

Now, it may be the case that one of these claims is more just than the other. But in my view, that’s not a claim that democracy has much to do with. Democracy per se isn’t (in my view) about making sure that justice prevails; it’s about making sure that people can self-govern in some sort of meaningful way. Which is hard enough.

So to go back to “one or the other will be shafted,” what Madisonian democracy attempts to do, in my view, is to make sure that the side that loses isn’t destined to lose on everything forever or even for the medium term; that the losing side on one thing doesn’t have to be on the losing side of everything; that intensity counts, so that an intense minority will (often?) defeat an indifferent majority; and otherwise ensuring that self-government does not become an oppressive rule of the majority. And it does all of that using a variety of devices and incentives to make sure, above all, that one stable majority does not confront one stable minority. For whatever the justice of that situation may or may not be, what Madison was certain of (and what keeps being proven out, from ancient times to Egypt this year) is that it just isn’t stable.

If we’re to return to the filibuster specifically, that’s a much harder question. As I’ve written, I think the filibuster is most justified simply in terms of democracy when it comes to judicial nominations — because that’s exactly where other checks and balances are weakest. For legislation (and to some extent for executive branch nominations), what I like about (more limited than current) filibusters is that it strengthens individual Senators, which in my view strengthens overall self-government. But really we’re not so much talking filibuster in particular here than we are talking about the general idea of majoritarian vs. Madisonian, or anti-majoritarian, democracy.

And for that, yup, Yglesias is correct that a status-quo bias is a very real problem for advocates of Madisonian systems. There’s no inherent reason why status-quo bias is good for democracy…indeed, it absolutely goes against one of the major arguments for democracy — the ability of people to collectively choose their own destiny. So I’ll certainly acknowledge that drawback, and that the benefits I see much outweigh it — which, in fact, I believe they do.

But he’s absolutely wrong about majorities and minorities.

[Cross-posted at A plain blog about politics]

Jonathan Bernstein

Jonathan Bernstein is a political scientist who writes about American politics, especially the presidency, Congress, parties, and elections.