This diary is a response to Kagro X's front-page post, What's up with Congress, anyway?, about the Bush administrations anti-democratic abuse of veto power. Kagro examined the issue from a separation of powers stance on the FISA bill.
I want to take it one step further and examine the problem from the spirit of representative democracy (i.e., are We the People getting what We want?) and focus on the Employment Non-Discrimination Act, which has been issued a veto threat by the president. It's a less sticky issue that's easier to poll than FISA legislation and one that I've followed closely this year.
And I'm using it as an example because I'm one of those Radical Homosexual Activists you hear so much about. But even us confirmed RHA's want democracy to work.
First, to understand the abuse on our democracy of Bush's peculiar veto, let's talk about why we even have a veto in the first place and a 2/3 requirement for overturning it.
Alexander Hamilton explains the need for a veto in the Federalist Papers:
The primary inducement to conferring the power in question upon the Executive is, to enable him to defend himself [against Congress passing laws that wipe away the president's powers, ~spgg]; the secondary one is to increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design. The oftener the measure is brought under examination, the greater the diversity in the situations of those who are to examine it, the less must be the danger of those errors which flow from want of due deliberation, or of those missteps which proceed from the contagion of some common passion or interest.
Hamilton says "the oftener a measure is brought under examination" because the veto wasn't meant to destroy legislation - it was meant to send it back to Congress for further consideration.
One of Hamilton's main concerns surrounding the veto was that it wouldn't be used often enough because the president wouldn't want to make herself unpopular by rejecting laws that are supported by a majority of people.
In fact, he thought that making the veto absolute would make a president less likely to use it:
Instead of an absolute negative, it is proposed to give the Executive the qualified negative already described. This is a power which would be much more readily exercised than the other. A man who might be afraid to defeat a law by his single VETO, might not scruple to return it for reconsideration; subject to being finally rejected only in the event of more than one third of each house concurring in the sufficiency of his objections.[...]
A direct and categorical negative has something in the appearance of it more harsh, and more apt to irritate, than the mere suggestion of argumentative objections to be approved or disapproved by those to whom they are addressed.
Hamilton cites the King of England as an example of someone who was afraid to use his "veto" over his country's two legislative houses because of the resulting unpopularity (I don't know enough about history to confirm or deny that claim). Even a King, he reasoned, wants to be popular.
But the veto was just meant to dissuade mob rule, protect the president's powers, and further discussion of legislation. The legislative branch was meant to be more powerful, which is why they have final say in this matter. Because if anyone's "wrong", it's less likely that it would be 2/3 of both houses of Congress than one president:
It is to be hoped that it will not often happen that improper views will govern so large a proportion as two thirds of both branches of the legislature at the same time; and this, too, in spite of the counterposing weight of the Executive. It is at any rate far less probable that this should be the case, than that such views should taint the resolutions and conduct of a bare majority.
Basically, while half the Congress plus one might be wrong in the face of half the Congress minus one, a ratio of 2:1 in favor of a law is safe enough to say that the legislation is a good idea and that We the People have a good reason to want it.
Flash forward to today, where it's evident that the president (not just GWB) doesn't really have much of a problem with vetoing too little.
And we have the benefit of modern polling techniques to see what people actually want their government to be doing. This is the case with the Employment Non-Discrimination Act (ENDA).
ENDA is a bill that outlaws workplace discrimination based on sexual orientation and/or gender identity/expression. It's been around in some form since 1974, and this past year was the first year that it looked like it had a good chance of getting through the House (Republicans generally oppose it).
The White House is currently threatening veto.
The bill is quite popular. 89% of Americans are in favor of job protections based on sexual orientation (gay, lesbian, and bisexual people), according to a 2007 Gallup Poll. And a 2004 Hart Poll found that 65% of Americans support protections based on gender identity (transgender workers, as well as masculine women and feminine men, no matter their sexuality).
With such wide support for both halves of the bill (thanks to the hard work of decades of queer activists), it should follow that it would have similar support in the Congress. While I understand that the geographic distribution of opinion and the relative importance of the issue diminish a direct correlation, it seems to me only fair that legislation that is supported by Americans almost 9:1 ratio should actually pass and that legislation supported by an almost 2:1 ratio of Americans should be supported by one major party.
But that's not the case. The sexual orientation protections polling at 89% are under veto threat, might not pass the Senate, and don't have a veto-proof majority in the House. The gender identity protections polling at 65% were dropped from the legislation before it left committee because of fears that there weren't enough Democratic votes for the legislation in the House.
I'm not making these arguments to reignite an internal dispute among LGBT activists over how to move forward, but to make the point that We (the People, not just LGBT's) are not being represented in any fashion that's close to just or intended by the Constitution's framers. 2:1 was considered "so large a proportion" that it's unlikely "improper views will govern" by Hamilton, and yet that proportion isn't enough in 2007 to get legislation to the floor of the House, let alone override a veto.
It's another layer of how the game is fixed against progressive policy. When legislation has to poll in the upper-80's just to make it to the president, who'll veto what he doesn't like no matter where it's polling, his veto becomes all the more egregious. Kagro talked about GWB using the veto to attempt to write the FISA legislation himself; in this case, since there's no way he would like a workers' rights bill, it's being used control the Congressional agenda and erase the will of close to 90% of Americans.
I don't know how the other 52 veto-threatened bills are polling, but something tells me that that number would be a lot higher if the Congress were debating all the legislation its base supports and passing all the legislation a majority of Americans support.
Kagro's point was that the Democrats are acting like a permanent minority despite their numerical majority. But when they can't even act like a proper Congressional minority and try to bring forth popular legislation that the opposing party doesn't support, then they're less than a minority, they're the silent minority.
And it makes those of us seeking change feel hopeless. What more can we do than persuade our fellow citizens that we're right and elect fair-minded politicians?
Something is deeply broken in the system, and instead of focusing on changing the results of the game, we need to rethink the rules. The people who wrote them were thinking that a different sort of person would be playing by them, not people who don't care about popularity, with a press that won't hold them accountable, and a populace that isn't interested enough to follow-through.
If we don't change the rules, then it's just another fixed game.