{"id":51679,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/ability-fl-prod.internetbrands.com\/ability-legal\/supreme\/legal-commentary\/democracy-and-bicameralism-in-the-us-and-britain-term-limits-and-the-legislation-to-put-house-of-lords-members-up-for-election.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"democracy-and-bicameralism-in-the-us-and-britain-term-limits-and-the-legislation-to-put-house-of-lords-members-up-for-election","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/democracy-and-bicameralism-in-the-us-and-britain-term-limits-and-the-legislation-to-put-house-of-lords-members-up-for-election.html","title":{"rendered":"Democracy and Bicameralism in the U.S. and Britain Term-Limits and the Legislation to Put House of Lords Members Up for Election"},"content":{"rendered":"\n
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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<\/h1><\/td>\n <\/tr>\n

By ETHAN J. LEIB AND DAVID L. PONET<\/h2><\/a><\/td>\n <\/tr>\n

Friday, Apr. 13, 2007<\/td>\n\n <\/tr>\n <\/table>\n

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. <\/p>

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. <\/p> \n\n

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.<\/p>

Bruce Ackerman’s Objection to the House of Commons Proposal <\/b><\/p>

Bruce Ackerman, professor of law and political science at Yale, has recently written in the London Review of Books<\/i><\/a> 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.”<\/p>

Re-election, however, is not necessarily the sine qua non<\/i> 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.<\/p>

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.<\/p>

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.<\/p>

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. <\/p> \n

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. <\/p>

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. <\/p>

Rory Stewart’s Objection to the House of Commons Legislation<\/b><\/p>

Writing in the New York Times<\/i><\/a> (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. <\/p>

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. <\/p>

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. <\/p>

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. <\/p>

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:<\/p>

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. <\/blockquote>

But this is just wrong. Changing the U.S. Senate from a largely appointed body to a directly elected body was not<\/u> 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.<\/p>

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.<\/p>

Despite These Counterarguments, the House of Lords Legislation Should Be Lauded<\/b><\/p>

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. <\/p>

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<\/u> 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. <\/p>

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.<\/p>\n\n\n<\/span>\n\n\n

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

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

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