Returning the Senate to Majority Rule

Standing at the edge of the health care precipice, President Barack Obama has reached a defining point in his presidency. The recent news that Anthem Blue Cross is planning to jack up individual premiums as much as 40 percent is just the latest example of our flailing health care system.

But beyond the immediate health care crisis a more fundamental national principle is at stake in the health care vote. And it affects not only health care but also pending legislation on global climate change, re-regulation of the financial industry, and more. That is the notion that the majority should rule. If Senate Republicans insist on abusing the quirky rules of the Senate, such as the filibuster which requires 60 out of 100 votes to end debate and vote on legislation, President Obama should push his health care package through the Senate via the "reconciliation process."

Reconciliation, which would allow 51 out of 100 Senators to pass health care legislation, would restore the constitutional principle of "majority rule" that has been hijacked in the filibuster-gone-wild Senate. Nowhere is it written in the Constitution that a supermajority is required to pass legislation in the Senate. Indeed, the Constitution requires the use of supermajority rules by one or both houses of Congress in only seven specific situations (including overriding a presidential veto, confirming treaties, removing a president or other leaders who have been impeached by the House). But the filibuster rule is not among them.

The Constitution's drafters clearly knew how to impose a supermajority rule when they wanted to, yet they didn't impose one for ending debate in the Senate. Various constitutional scholars have concluded that ordinary majority rule is the Constitution's default baseline, except in those seven explicit instances.

The filibuster rule is merely a peculiarity of antiquated Senate tradition, part of an anti-majoritarian streak that once protected a minority of slaveholding states. Such anti-majoritarianism was opposed by leading constitutional figures. James Madison and Alexander Hamilton warned about the creation of any legislative body which "contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail" (Hamilton, Federalist Paper number 22).

The problem with supermajority thresholds, as Hamilton and Madison pointed out, is that they allow a rump minority to exercise a veto over what the vast majority wants. Currently the 41 Republican senators represent barely a third of the nation's populace. Yet through the filibuster they can strangle any legislation favored by senators representing the other two-thirds. The resulting paralysis and gridlock undermines the Senate's credibility.

Very few national legislatures require a supermajority to pass legislation, though one comparable situation we can point to is in California. There, a two-thirds legislative supermajority is required to pass a budget or alter revenues, and also has resulted in paralysis.

Not only should Obama and congressional Democrats invoke reconciliation, they should retire the anti-majoritarian filibuster to the dustbin of history. Some political leaders believe that doing so would require 67 votes, and if you can't get 60 votes to end a filibuster how could you possibly get 67 votes to change the Senate rule that established the filibuster?

But law professor Vikram Amar and other legal experts have concluded that only a Senate majority is necessary to abolish the filibuster. The Constitution allows the Senate or the House to "determine the rules of its proceedings" by a simple majority vote. The rule establishing the filibuster itself was passed by only a majority, and a bare majority of an earlier Senate cannot legally bind future Senates to a two-thirds vote. To try and do so, writes Prof. Amar, "would be in violation of deep constitutional and American values."

Another possibility would be to reform the filibuster, as proposed by Democratic Senator Tom Harkin from Iowa. Senator Harkin would allow the debate-ending requirement to be lowered gradually the longer a measure is debated. Initially ending debate might require 60 votes, but after a few days of debate it would be re-set at 57 votes. Days later, the requirement would be lowered to 54, and so forth. "In that way, a bare majority could not circumvent discussion and deliberation at the outset, but neither could a recalcitrant minority hold up majoritarian action indefinitely," writes Professor Amar.

So by either using reconciliation, modifying the filibuster, or getting rid of it entirely, President Obama would return the Senate to the original "majority rule" vision of Madison and Hamilton. And he would pass health care legislation that will allow millions of fellow Americans to benefit from a level of health care security already enjoyed by the president and the senators.

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