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Mr. Smith Rewrites the Constitution
About the Senate, a college professor of mine used to say, "One day, the Supreme Court will declare it unconstitutional." He was joking, I think.
But the Senate, as it now operates, really has become unconstitutional: as we saw during the recent health care debacle, a 60-vote majority is required to overcome a filibuster and pass any contested bill. The founders, though, were dead set against supermajorities as a general rule, and the ever-present filibuster threat has made the Senate a more extreme check on the popular will than they ever intended.
This change to the Constitution was not the result of, say, a formal amendment, but a procedural rule adopted in 1975: a revision of Senate Rule 22, which was the old cloture rule. Before 1975, it took two-thirds of the Senate to end a filibuster, but it was the "Mr. Smith Goes to Washington" filibuster: if senators wanted to stop a vote, they had to bring in the cots and the coffee and read from Grandma's recipe for chicken soup until, unshaven, they keeled over from their own rhetorical exhaust.
For the record, nothing like Senate Rule 22 appears in the Constitution, nor was there unlimited debate until Vice President Aaron Burr presided over the Senate in the early 180os. In 1917, after a century of chaos, the Senate put in the old Rule 22 to stop unlimited filibusters. Because it was about stopping real, often distressing, floor debate, one might have been able to defend that rule under Article I, Section 5 of the Constitution, which says, "Each house may determine the rule of its proceedings."
As revised in 1975, Senate Rule 22 seemed to be an improvement: it required 60 senators, not 67, to stop floor debate. But there also came a significant change in de facto Senate practice: to maintain a filibuster, senators no longer had to keep talking. Nowadays, they don't even have to start; they just say they will, and that's enough. Senators need not be on the floor at all. They can be at home watching Jimmy Stewart on cable. Senate Rule 22 now exists to cut off what are ghost filibusters, disembodied debates.
As a result, the supermajority vote no longer deserves any protection under Article I, Section 5 - if it ever did at all. It is instead a revision of Article I itself: not used to cut off debate, but to decide in effect whether to enact a law. The filibuster votes, which once occurred perhaps seven or eight times a whole Congressional session, now happen more than 100 times a term. But this routine use of supermajority voting is, at worst, unconstitutional and, at best, at odds with the founders' intent.
Here's why. First, the Constitution explicitly requires supermajorities only in a few special cases: ratifying treaties and constitutional amendments, overriding presidential vetoes, expelling members and for impeachments. With so many lawyers among them, the founders knew and operated under the maxim "expressio unius est exclusio alterius" - the express mention of one thing excludes all others. But one need not leave it at a maxim. In the Federalist Papers, every time Alexander Hamilton or John Jay defends a particular supermajority rule, he does so at length and with an obvious sense of guilt over his departure from majority rule.
Second, Article I, Section 3, expressly says that the vice president as the presiding officer of the Senate should cast the deciding vote when senators are "equally divided." The procedural filibuster does an end run around this constitutional requirement, which presumed that on the truly contested bills there would be ties. With supermajority voting, the Senate is never "equally divided" on the big, contested issues of our day, so that it is a rogue senator, and not the vice president, who casts the deciding vote.
The procedural filibuster effectively disenfranchises the vice president, eliminating as it does one of the office's only two constitutional functions. Yet the founders very consciously intended for the vice president, as part of the checks and balances system, to play this tie-breaking role - that is why Federalist No. 68 so specifically argued against a sitting member of the Senate being the presiding officer in place of the vice president.
Third, Article I pointedly mandates at least one rule of proceeding, namely, that a majority of senators (and House members, for that matter) will constitute a quorum. Article I, Section 5 states in part that "a majority of each shall constitute a majority to do business." Of course, in requiring a simple majority for a quorum, the founders were concerned about no-shows for a host of reasons - not least of all because the first legislators had to travel great distances by stagecoach.
But the bigger reason for the rule was to keep a minority from walking out and thereby blocking a majority vote. In Federalist No. 75, Hamilton dismissed a supermajority rule for a quorum thus: "All provisions which require more than a majority of any body to its resolutions have a direct tendency to embarrass the operations of the government and an indirect one to subject the sense of the majority to that of the minority."
It would be illogical for the Constitution to preclude a supermajority rule with respect to a quorum while allowing it on an ad hoc and more convenient basis any time a minority wanted to block a vote. Yet that is essentially what Senate Rule 22 achieves on any bill that used to require a majority vote.
So on the health care bill, as on so many other things, we now have to take what a minority of an inherently unrepresentative body will give us. Forty-one senators from our 21 smallest states - just over 10 percent of our population - can block bills dealing not just with health care but with global warming and hazards that threaten the whole planet. Individual senators now use the filibuster, or the threat of it, as a kind of personal veto, and that power seems to have warped their behavior, encouraging grandstanding and worse.
What can be done about the procedural filibuster? There are several promising lines of attack.
If the House passed a resolution condemning the use of the procedural filibuster, it might begin to strip the supermajority of its spurious legitimacy. It's the House that has been the great victim of the filibuster, and at least with such a resolution that chamber could express the grievance of the people as a whole against this usurpation by a minority in the Senate.
The president of the Senate, the vice president himself, could issue an opinion from the chair that the filibuster is unconstitutional. Our first vice presidents, John Adams and Thomas Jefferson, felt a serious obligation to resolve the ties and tangles of an evenly divided Senate, and they would not have shrunk from such a challenge.
We citizens could also demand that our parties stop financially supporting senators who are committed to the filibuster, and we ourselves could deprive them of fund-raising dollars.
And we needn't rule out the possibility of a Supreme Court case. Surely, the court would not allow the Senate to ignore either the obvious intent of the Constitution.
Whether any such approach works, the founders would have expected us to do something about this unconstitutional filibuster. In Federalist No. 75, Hamilton denounced the use of supermajority rule in these prophetic words: "The history of every political establishment in which this principle has prevailed is a history of impotence, perplexity and disorder." That is a suitable epitaph for what has happened to the Senate.
26 Comments so far
Show All"And we needn't rule out the possibility of a Supreme Court case. Surely, the court would not allow the Senate to ignore either the obvious intent of the Constitution."
The Constitution states that voting matters are to be dealt with by the individual states. Yet, in 2000, the Republicans on the Court ordered Florida to stop counting the ballots.
Will the Republicans on today's Court (who are arguably more conservative than in 2000(tell the Republicans in the Senate to stop acting like children?
Geoghegan sez: "Surely, the (Supreme C)ourt would not allow the Senate to ignore either the obvious intent of the Constitution."
***
Whoa.
I didn't realize this was a satirical piece until he included that line.
Yeah. LOL on that one.
Gary
"Surely, the court would not allow the Senate to ignore either the obvious intent of the Constitution."
Really?
Good one. The Supreme Court thinks the Constitution is the instruction book for a rigged monopoly game.
All this talk about procedure is irrelevant, since we all know it's lobbyists' money that drives legislation. Constitutional this, popular will that... typical limited hangout from the NY Times - giving us all the propaganda that's fit to print.
If we're going to discuss constitutionality, how about the unconstitutionality of the Federal Reserve Act? Or the surreptitious adoption of "precedent" for corporate personhood from Santa Clara County vs. Southern Pacific Railroad (1886)? Or the Buckley vs. Valeo decision that made campaign contributions a form of constitutionally protected free speech? These express the anti-democratic essence of our plutocracy and provide the means of its self-perpetuation, since they do in fact ensure that money will continue to run the game and that our federal legislature will thereby continue to suffer chronic "impotence, perplexity and disorder." The last thing they want is any possibility that popular will might guide legislation.
Also note that that media air time in the low population states costs a fraction of what it costs in high population states. Political campaigns are therefore much less costly in the low population states enabling corporations to buy Senators from the low population states at a very low cost and leverage their influence over the whole US Senate.
Yeah. Politicians come pretty cheap in KY according to an FBI sting.
Gary
Excellent points, I think the last 2 are fairly straightforward in their adoptability to a political movement to rectify those injustices - my suspicion why we have our current situation is that it helps to maintain corporate power by preventing change.
You can make a compelling case for elimination of the filibuster, but there is an equal if not greater case for its retention. The issue comes to the fore with the current situation that the health care "reform" bill survived by only a single vote a filibuster in the Senate that would have killed it. If you're a proponent of said bill, you are likely to call for the elimination of this "un-constitutional" measure. But consider this: if you believe (as I do) that the "reform" bill is actually a "deform" bill which will set back real reform for a long time, then you could only pray for one more "un-bought" vote against the bill that would have spelled its doom and given the country a chance to start over with an honest reform measure.
I have the feeling that perhaps about a year from now, if the tea bagger revolt in this country carries regressive forces back into power---you know, those that would repeal any remnant of progressive taxation and of social programs for the benefit of the disadvantaged--you would WELCOME a provision that might stand in the way of a "simple" majority of regressives enacting such legislation. Some of the constitution's founders may have railed against super-majorities as the ruin of democracy, but others were concerned as well with the "tyranny of the majority" and put into the constitution those "checks and balances" that can serve as a moderating balance against rapid shifts in public opinion, especially in times of social unrest (as what else are the "times" of today?) Maybe they never envisioned a filibuster, but they actually did have some "wisdom" about the legislative process that we ignore today at our peril.
1. Are you deliberately missing the point of the article?
A genuine filibuster rule, one that allows an especially determined minority the chance to prolong debate but not halt the voting process forever, is one thing. The current version of Rule 22 is quite another. Now the minority need only INFORM the body that they WISH to filibuster (or actually hold the floor) and they are considered to be doing so (i.e. without actually holding the floor).
This transforms the Senate by effectively making the majority necessary for passage of a bill 60-40, not 50-50 with the Vice President's tiebreaker.
It is this VERSION of the filibuster rule, not the filibuster practice itself that is Unconstitutional.
2. Your speculation as to how we may feel about this Unconstitutional practice in the Senate if the (eek!) "tea-bagger revolt in this country carries regressive forces back(sic) into power" demonstrates one of the main flaws in the Two-Party political system, and in fact partisan politics as a whole:
When one is so caught up in "defeating" the other Party, one can forget that one is SUPPOSED to be representing the Sovereign People in a Democratic and Constitutional Republic. Breaking the rules set by the Constitution and the values set by Democracy may benefit one's Party, but it will HURT the People as a whole, including -eventually- one's self. At least, this is true where continuing to have a Constitutional goverment of, for, and by, the People is something that one cares about anymore. Partisan politics in our country have pushed many past this point, unfortunately.
3. "Tyranny of the Majority" is:
a) A phrase coined by Alexis de Toqueville in Democracy in America in 1835, some 46 years after the Constitution's writing and 42 after its ratification.
b) Not really applicable to this discussion. No one is questioning the right of the Senate Minority to prolong debate -as in a true filibuster- just the twisting of that right into a Minority Rule Senate. Also, this majority tyranny was something that Toqueville feared in the Democratic State as a whole, not in specific representative bodies.
c) The Founder's "check" against "rapid shifts in public opinion" in the Senate was the election of Senators by State Legislatures, not direct poll of the People. Beyond that, the Constitution itself was meant to be the largest "check" on such whims. And it is the Constitution which is being violated by this Rule 22.
-matti.
matti: Thanks for responding to my post. I granted at the outset that the author made a "compelling case" against Rule 22 but that there is a counter-case that I thought could compellingly be made. In the case of yourself, I obviously failed to do that.
I did not, in fact, "deliberately miss the point" of the article, and hopefully I won't miss the point of your response: which seems to be that there is nothing wrong with the filibuster per se as an instrument of a "determined minority," but only Rule 22 is wrong in that it can stop legislation on the mere threat of a prolonged debate rather than having to carry it out. I find that a weak and questionable basis for challenging Rule 22. If the sole effect of the rule, as I suspect its supporters intended, was to facilitate the business of the Senate without having to go through the high comedy of Senators in their pajamas reading the funny papers on the Senate floor, the rule is all to the good: that is, if we believe that it is vital to the public interest for legislative matters to be settled in timely fashion.
You're right, of course, that "tyranny of the majority" as a phase does not go back earlier than the l830s and Tocqueville's historic visit to America. But there was definite fear of direct democracy following the fluctuations in public sentiment, including the indirect selection of Senators by state legislatures, a measure that neither I nor hardly anyone else would support today. True, as the author says, the framers reserved "super-majorities" to a few votes such as the confirmation of cabinet officers, but there's nothing I know of which precluded such super-super-majorities as the unanimous jury votes involved in criminal trials. And my point holds that "simple" majorities can sometimes be feared and that it may be prudent to raise the bar, even for "routine" legislation (and who's going to define that) to something above 50% of the votes in the Senate. You speak rather snidely of my fear of the "return of the regressives" but maybe you, along with many "progressives," under-estimate the power of popular unrest with the economy and with foreign wars taking the Sarah Palin option of: let's reduce the size of gummint and wash it down the bathtub---let's get rid of them terrorist bastards by bombing into oblivion the countries that "harbor" them, or at least torture terrorist suspects if "necessary" to stop their plots. In a Congress that could well take that form after the 2010 elections, I say again that you might be damned thankful for a Senate in which, hopefully, only 40 Senators willing to filibuster either under Rule 22 or in the "old-fashioned" way against the Palin regime would have some chance of stopping the madness before it kills us all.
The Democratic "leadership" from Obama on down to the lowly puppy dog Harry Reid, decided that the best way they could resist the political pressure from the base of their party, (i.e. screw them big time) would be to effectively extend the power of the Republican minority in the Senate by ASSUMING that the filibusters would happen short of 60 votes on anything. How convenient! They don't force any member to actually filibuster anything! So puppy dog Harry Reid, calmly says gee whiz folks, we need 60 votes to pass anything! If the filibuster were actually performed on the floor of the Senate, which is required in the rule, instead of just assumed, then the whole political dynamic in the Senate would swing to the left, toward the movement the majority of Americans sought in the 2008. This is a problem of the corrupt, corporatist, Democratic leadership, and nothing else. It is also a problem of the so-called progressives in the Senate, who don't even threaten a filibuster to stand for anything. They are in on it too of course.
I agree.
These New York Times artcles assume that we have a government with rules that are followed and conduct in the senate that is uniform and respectful of the laws.
How quaint.
We are ruled by ruthless criminals. They may be intelligent and educated but they are not worth anything. Prison is too good for them.
Inadverdantly, the author points-out one of the many flaws in the 1787 constitution--"Article I, Section 5 of the Constitution, which says, 'Each house may determine the rule of its proceedings.'" Clearly, rules for both the senate and house should have been outlined, or made even more specific, by the constitution. This is one of the explanations as to why the next constitution must be more complex.
"... the founders would have expected us to do something about this unconstitutional filibuster..."
The "founders" probably would have expected us to revolt by now, but they had no concept of a "couch potato."
There was a revolt. It's called the Civil War. The problem is very little was done to the 1787 constitution afterward as it remained a fundamentally reactionary document that expessly limits democracy and promotes authoritarianism. And very little was done between then and now to improve those faults.
Oh, quite a bit has been done to the 1787 Constitution. It has been "improved" in a myriad of fascinating ways. Of special interest are the "improvements" through Supreme Court interpretations, such as those in Santa Clara County v. Southern Pacific RR Co. and Buckley v. Valeo, as it evolved from elite-friendly to elite corporation-friendly.
Yes. As I said, it remains a fundamentally reactionary document.
Yes, reactionary in its original form, and it has remained so in spite of many twists and turns over time. Though originally designed to protect the interests of the white upper middle class (propertied) males, it has evolved to protect the interests of individuals of any gender or race, and superficially any social class, though actually it has come to favor super-elites more than ever.
In the past few decades the S. Ct. interpretations have produced an extreme pro-corporate bias that benefits super-elites and that would have offended the sensibilities of the so-called "founders," many of whom were anti-corporate because of past experiences with the British East India Company and because few of whom considered themselves as super-elites. The corporations of that time and the super-elites that ran them were the enemies of the founders, and I suspect that they would have expected future generations of Yankees to revolt if such enemies reappeared to dominate the great majority of the people.
If they want to filibuster, make them actually do it! Let the people see the obstructionists in the act on live TV.
OldUncleDave: Yeah and while we're at it, let's televise all jury deliberations to let the people see those obstructionists who "hold out" against the majority on a issue of conviction. Let's make it as hard as possible to dissent from a majority conviction, even if the holdout is holding out for a jury result that actually agrees with the evidence.
Disclaimer: the above is SATIRE, ladies the gentlemen!
"The president of the Senate, the vice president himself, could issue an opinion from the chair that the filibuster is unconstitutional. Our first vice presidents, John Adams and Thomas Jefferson, felt a serious obligation to resolve the ties and tangles of an evenly divided Senate, and they would not have shrunk from such a challenge."
Yea, but Adams or Jefferson ain't the vice-president. Joe Biden is. So good luck with that.
Man! CD does have a problem with me suggesting that Mr. Smith re-write the Constitution in toilet paper.
So, go ahead! Delete my post - for the third time! And kiss my contribution good bye. For the third time!
Allowing 10% of the population to be represented by 40% of the Senators is the basic issue. What is the virtue of that? Are citizens of rural states more virtuous or better educated? Are the rural and agricultural interests of those in less populated states so important that they should be represented in numbers ten times as great as urban or even suburban people? You can tell that I think such assertions are rhetorical. The interests of rural people are no more vital than those of urban ones. And just look at the representation of those in the Senate from these rural states if you want to get an inkling of the moral or intellectual character of people who experience the rough, ignorant and often brutal aspects of rural life.
I think this is something of a red herring. In this case, I think the legislature is basically working.
You have a two chambered legislature, and--surprise?--two DISTINCT "healthcare reform plans." One of those, that issuing from the lower house, is widely thought to be MORE in the interests of the popular majority than that issuing from the upper house.
I fail to see how this is not EXACTLY how the bicameral legislature was INTENDED to work.
That the plan issuing from the lower house is not as "progressive" or go as far as reform advocates would have liked is a problem of political discourse and of political expectations--and the clever delimiting of those expectations--that occurs OUTSIDE the technical process of governing.
You know, it's an error in constitutional understanding on the part of the public to expect the Senate to be a democratic institution. The people who manage to get elected to the Senate either come from the elite or are put in office by their elite associates.
Rank and file "liberals" are especially given to this error in understanding because they like to think that the elite is "liberal" like they are. This is wrong. If you're in the bottom 90% of the population, the Senate is there to f*ck you.
The constitional problem, here, is that the HOUSE is going to ACCEPT the Bill dictated by the Senate. It is the duty of the House to REJECT the Senate Bill and insist on its own Bill--which it should have made *more* agressive, KNOWING some of it would be negotiated away in dealing with the *explicitly undemocratic* Senate.
Bottom line: Too much obesiance to elites in the ENTIRETY of the Democratic Party. This is an extra-constitutional problem. It's a problem in the constitution of the "liberal" character. Too SLAVISH.
Of course, it doesn't help that the executive offices of the President have been lieterally threatening D-Party representatives in the House, saying they will not fund their re-elections unless they do as dictated by the Administration.
How is this not "unconstitutional"?
Parties also serve to obfuscate how the bicameral legislature was *intended* to work. There were no official parties when the constitution was written. While there was attention given to small states, it was also a CLASS based legislature--no surprise that some of us have put a huge premium on endlessly obfusating that not so minor detail.
It is only because of the FDR legacy that 90% of the population had any representation at all in the Democratic Party over the past 40 or so years. That Party of FDR is DONE. There are no small-D democrats left to speak of in the Senate. The Senate is there to f*ck you, to which it has dedicated itself with extraordinary diligence.
It actually brings great clarity to the legislative process to recognize that the negotiation process happens BETWEEN the two bodies, and not entirely WITHIN the upper house because "it says so."
Tell the House to DO ITS JOB and REJECT the Senate Bill.
It's really not that complicated.