Democracy and Bicameralism

[Leigh Meyers <the.buffalo.in.the.midst@xxxxxxxxx>]

  http://writ.lp.findlaw.com/commentary/20070413_ponet.html
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Democracy and Bicameralism in the U.S. and Britain: Term-Limits and
the Legislation to Put House of Lords Members Up for Election
By ETHAN J. LEIB AND DAVID L. PONET
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Friday, Apr. 13, 2007

Although the merits and weaknesses of having two legislative houses in
mature democracies are disputable and ripe for ongoing reflection, it
is odd that, from the U.S. perspective, an unelected House of Lords in
Britain never seems to jeopardize Britain's claim to being a
legitimate democracy. It turns out that there are many ways to design
legitimate democracies, of course -- and democracies don't need to
mirror the United States's particular and potentially peculiar balance
of powers. Still, as the United States pursues its global mission of
exporting democracy and nurturing fledgling democracies, many seem
guided by the maxim that elections for legislative officials are a
good thing. The occasion of the recent effort to reform the House of
Lords in Britain is as good a time as ever to rethink the contribution
two elected legislative bodies can afford democratic governance.

Last month, Britain's House of Commons decided that its entire House
of Lords (or at least 80% of its members) should face election. It is
not surprising, of course, that the House of Lords itself recently
announced its overwhelming disapproval of the Commons' vote. But it is
deeply puzzling that many other commentators have also taken the same
position - calling to preserve this anachronistic institution.

We think that electing the Lords is a no-brainer from the perspective
of democracy. That proposal, just endorsed by Britain's most
democratic branch, would bring the Upper House closer to its American
corollary, the U.S. Senate, and other modern bicameral democracies.
Even if the Commons' plan for reform isn't perfect, further tinkering
can be accomplished over time; there is a long tradition of futzing
with the Lords, their authority, and their functions. Over the
centuries, the House of Lords, once Britain's more powerful chamber,
has withstood many reforms that consistently diminished its powers,
shifting more and more of them to the elected House of Commons -- now
the true seat of British sovereignty. Despite this timely effort to
further democratize Britain's lawmaking bodies, critics have still
raised objections. Here, we'll discuss two of the leading ones.

Bruce Ackerman's Objection to the House of Commons Proposal

Bruce Ackerman, professor of law and political science at Yale, has
recently written in the London Review of Books that "the promise of
democratic legitimacy" that would be afforded by electing the members
of the House of Lords "is a sham." Why? Because the plan to elect the
Lords envisages non-renewable 15-year terms. Why is that a problem,
you ask? Because, as Professor Ackerman explains, "The bar on
re-election strips voters of their basic tool for democratic
accountability: the politicians' fear that their constituents will
throw them out of office."

Re-election, however, is not necessarily the sine qua non of
democracy. Many U.S. state legislators and U.S. presidents serve under
term limits and cannot be re-elected. Although many oppose term limits
(at least at the state level), we hardly consider our entire democracy
a sham just because our second-term presidents and our term-limited
state representatives cannot be subject to re-election.

Of course, elected officials in their final term can display unnerving
irresponsibility. So Britain may one day wish to revisit the
non-renewability of terms. But to suggest that non-renewability of
terms renders democracy a sham seems a bit too facile.

Indeed, serving a final term without hope for re-election can cut both
ways. A representative completing her final term can just as easily
use her freedom from re-election campaigning for positive ends: to
focus energy on governing with discretion, and to exercise some
measure of independence from the whims of partisan politics and the
need to curry favor with powerful party donors.

Moreover, it is a bit simplistic to imagine that non-renewable terms
present no possibility for democratic accountability. Under the House
of Lords reform contemplated by the Commons, the Lords would generally
be elected from party lists. Parties could thus be punished for their
members' incompetence and poor performance.
Column continues below â

By comparison, although President Bush's behavior in his second term
is not "accountable" to the people through re-election, Republicans
may pay -- and have already paid, by losing the House and Senate to
Democrats -- an electoral price for Bush's second-term actions.

It's true that party members can always try to separate themselves
from party platforms -- as some Republicans will certainly do in the
2008 elections. But even simple electoral accountability (without term
limits) is always somewhat indirect: because we have to elect
candidates and bundles of preferences, there is rarely a one-to-one
correspondence between personal preference and the person we choose to
vote for in an election.

Rory Stewart's Objection to the House of Commons Legislation

Writing in the New York Times (subscription required), Rory Stewart
also argued against Lord reform. He wrote: "Two elected houses make
sense in a federal system, where the lower house represents
individuals and the upper house the states." Since Britain is not a
federal country, he suggested, bicameralism has no place there. Thus,
the right way to go, in his view, is not to reform the House of Lords,
but to abolish it.

Stewart's analysis, however, is misguided on many different levels. In
the first place, Britain has been bicameral for much longer than the
U.S., despite its not being a federal country. Second, the U.S. system
incorporates bicameralism not only at the level of the federal
government, where states get equal representation in the Senate, but
also in the legislatures of 49 states. Moreover, virtually all
American states have retained bicameralism even though such
bifurcation has little to do with preserving practices of "internal"
federalism, within each state, today.

That may be, in part, because bicameralism has important functions
other than serving federalism, as the American Founding Fathers well
understood. George Washington explained to Thomas Jefferson that "we
pour legislation into the senatorial saucer to cool it." The Upper
House offers a different perspective from the Lower House, precisely
because the terms under which members of the Upper House serve are
longer -- furnishing the membership with a longer-term agenda.

The Founders understood that democratic political representation
involves both long and short-term perspectives -- and both immediate
and direct contact with constituents as well as less immediate and
less direct contact. The victor is ultimately neither the hot tempers
residing in the Lower House, nor the detached, Olympian judgments of
the Upper House, but rather the potentially optimal hybrid that can
emerge from commingling the two. This is what bicameralism is good for
-- and nothing about an elected Upper House with relatively long terms
diminishes that.

Stewart is also under the misimpression that changing the very nature
of the Upper House can only be done through revolution and
constitutional conventions. He writes:

   Real constitutional change should be driven by crisis and
necessity. The United States achieved change on this scale only
through revolution. That crisis created the opportunity for the
Founding Fathers to define their basic philosophical principles and
write a new constitution, which remains to this day both a cornerstone
of national pride and also a formal political instrument, governed by
strict rules.

But this is just wrong. Changing the U.S. Senate from a largely
appointed body to a directly elected body was not the work of the
Founding Fathers after a revolution. Instead, this was the innovation
of the Seventeenth Amendment in 1913. The U.S. did not need a new
Constitutional Convention to make this change. It was evolutionary,
not revolutionary -- and was accomplished under the "old" Constitution
through mere amendment.

Who, nowadays, wants to repeal the Seventeenth Amendment and revert to
an appointed Senate? That isn't a rhetorical question. Lately, only
politically marginal and fringe figures like Zell Miller and Alan
Keyes have tried to effect this reversion away from democracy and
popular election, in the name of federalism. Perhaps hard-core
federalists actually prefer appointed Upper Houses. But, as Stewart
tells us, Britain is not a federal country.

Despite These Counterarguments, the House of Lords Legislation Should Be Lauded

In short, most of the arguments against democratizing the House of
Lords are overblown, if not fallacious. The British people, through
their representatives in the House of Commons, are demanding this
reform; and the Lords might reasonably be seen as "conflicted off"
this particular debate, due to their own self-serving stake in it. In
light of the popular support for this outcome and the fact that it
deepens the representative nature of the British government, there is
no good reason to oppose it.

Admittedly, Britain will have to think hard about how to make peace
between its commitment to, on the one hand, parliamentary democracy,
and, on the other, its symbolic monarchy and the Church of England --
both of which achieve representation in the House of Lords as it is
currently organized. Changing one of its legislative bodies so that
its members are elected rather than appointed will undoubtedly have
ramifications that reverberate throughout the government. But the
Lords have been undergoing incremental reform for centuries; the
country will survive this long overdue change. The benevolent house of
nobles has always been a house of cards from the perspective of modern
democracy -- even if it is largely tolerated. That's the real sham.
The British should start electing the members of the House of Lords as
soon as possible, and worry about more comprehensive reform in due
course.

If the Lords remain unelected, their capacity to provide a
counterforce to the democratic Commons will grow attenuated over time.
Ultimately, the House of Lords will devolve into merely a tepid cup of
tea that goes on cooling, while hot tempers in the Commons are left to
simmer unabated. That would be a shame -- for an elected House of
Lords (perhaps renamed to reflect its newly democratic status) could
serve a purpose much like that of the U.S. Senate -- to offer a
perspective that could broaden the scope of political discourse and
reflection.

Ethan J. Leib, author of Deliberative Democracy in America: A Proposal
for a Popular Branch of Government(paperback, 2005) and the co-editor
of The Search for Deliberative Democracy in China (2006), is a
professor of constitutional law and legislation at the University of
California's Hastings College of the Law in San Francisco.

David L. Ponet, a political scientist whose 2006 dissertation was
about political representation in the United States, is a policy
advisor in state government.

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