The United States Senate: Our Undemocratic National Disgrace
Posted: April 18, 2013 Filed under: General Law, Legal History | Tags: filibuster, structure 3 CommentsBlame Aaron Burr. Not only did he kill Alexander Hamilton in a duel, he is arguably responsible for the filibuster, the procedural rule that effectively requires 60 votes in the U.S. Senate–ten more than a simple majority–to pass any bill. The institution oft-described as the “world’s greatest deliberative body” has been reduced to a national disgrace, a laughing-stock, a body composed of mostly rich, mostly white men, who can’t even enact legislation requiring meaningful background checks on individuals who want to buy firearms.
The growing abuse of the filibuster has transformed the Senate into one of the most undemocratic bodies in the world. As Ezra Klein has explained in the Washington Post, it is a body in which a minority of senators (41), representing only 21 of 50 states and only 11% of the nation’s population (because each state gets two votes in the Senate, regardless of its population, thereby giving extraordinary power to small states), can stop overwhelmingly popular legislation dead in its tracks. To say that the filibuster must be reformed is a gross understatement.
How did the Senate end of up this way? Back to Aaron Burr. In 1806 he suggested that the Senate clean up its own rule book, which he believed had grown overcomplicated. He proposed, and the Senate agreed to, the elimination of “the previous question motion”–the motion by which senators ended debate on a particular subject and moved on to the next matter for discussion. He viewed the motion as unnecessary; senators were gentlemen and did not need to be told when to shut up and sit down.
Eliminating the previous question motion left the Senate without a procedure for ending debate without the consent of every single senator. Given that the previous question motion had rarely been invoked (because senators were gentlemen back then), Aaron Burr and the Senate likely had no idea that by eliminating the motion they had created the filibuster–the right of each and every senator to engage in endless debate, thereby preventing a vote on the merits of proposed legislation. In short, the filibuster was an accident.
As long as senators remained gentlemen, filibusters were rare. In the 60-year period between 1840 and 1900, there were only 16. However, growing partisan tensions in the late nineteenth century led to an increase in the number of filibusters. In 1917, Woodrow Wilson pressured the Senate into adopting what is now known as “Rule 22,” the procedure (called “cloture”) that allows a supermajority of senators to end debate and amendments and move to an up-or-down vote on the merits of the legislation, which only requires a simple majority to pass. The number of votes needed for cloture has varied over the years. Today, 60 votes are required. As noted, that means a minority of 41 senators can prevent cloture, and thereby prevent a vote on proposed legislation, as well as on a president’s nominees for positions in the executive and judicial branches.
The number of filibusters has increased dramatically in recent years. Between 2009 and 2010, there were over 130 filibusters.
Is this what the framers of the federal constitution intended? (Whether their intentions in 1787 should control our actions in 2013 is an issue that I will address in a future post.) Surely not. Yes, the framers intended the Senate to be a deliberative body, one that would serve as a counterbalance to the potentially rash tendencies of the House of Representatives. To accomplish these objectives, senators serve six year terms (compared to two years in the House), only one-third of senators are up for reelection in any particular election, and large and small states have equal representation. But the framers did not intend a minority of senators to have the power to trump the majority. That is, they did not intend Congress (both the Senate and the House) to be supermajoritarian bodies.
For example, in Federalist 22, Alexander Hamilton criticized the concept of a supermajoritarian Congress, stating that “its real operation is to embarrass the administration, to destroy the energy of government and to substitute the pleasure, caprice or artifices of an insignificant, turbulent or corrupt junta, to the regular deliberations and decisions of a respectable majority.” Similarly, James Madison wrote in Federalist 58, “In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule; the power would be transferred to the minority.”
Indeed, some have argued–in light of the historical evidence of the framers’ intent and certain provisions of the Constitution that require supermajority votes of Congress in specific instances–that the filibuster is not only bad policy, it is unconstitutional.
The views of the minority should be heard and considered. But they should not govern–not in a democracy. (Of course, even majorities are not entitled to infringe upon rights that enjoy constitutional protection under the Bill of Rights and other amendments, like the Fourteenth.) What Sarah Binder and Thomas Mann of the Brookings Institution said of the filibuster in 1995 is even more true today:
The use of the filibuster in today’s Senate serves the interests of the minority at the expense of the majority. Far from preserving the Senate’s role as a deliberative assembly, the filibuster today encourages rampant individualism and obstructionism, endless delays and unfocused discussion, hardly conducive to the thoughtful consideration of measures to solve vexing problems of public policy.
It is long past time for filibuster reform. We should all–Democrats, Republicans, Independents–rise up and demand it. Now. Loudly. Repeatedly. Until it happens. And if our senators won’t support it, we should fire them. If we don’t, we’ll only have ourselves to blame.
Appealingly Brief! 
Alexander Hamilton’s observation certainly fits with Congress’ action yesterday: “its real operation is to embarrass the administration, to destroy the energy of government and to substitute the pleasure, caprice or artifices of an insignificant, turbulent or corrupt junta, to the regular deliberations and decisions of a respectable majority.” Truly an embarassment to all of us!
Dan, after failing to be outraged by Pat Laheay invoking cloture to prevent a number of Bush’s appointments get filibustered, I’m glad you’ve finally found religion and “realized” how horrible the filibuster is. That is a smart-*ss way of pointing out that everyone hates the filiabuster while they are in the majority, but loves it when they are not; the reason why Harry Reid did not “go nuclear” and eliminate it altogether at the start of this Congress; i.e. he knows that the worm will turn and that the D’s will be in the minority and want to block all sorts of things they don’t like. More seriously, even if you think the filiabuster is horrible, the only way it goes away is by a bipartisan agreement forged outside the context of its invocation, and probably then only gradually beause, like it or not, it has become part of our political system upon which both sides rely.
Second, what a horror it is that the Senate is undemocratic and gives those pesky small (and mostly red) states disproportionate power! Oh, wait, that’s it’s very purpose. Indeed, absent the disproportionate representation of smaller states in the Senate, it’s hard to see how the U.S. could have come into existence, at least in anything remotely approaching its current form: “The equality of representation in the Senate is another point, which, being evidently the result of compromise between the opposite pretensions of the large and the small States, does not call for much discussion. If indeed it be right, that among a people thoroughly incorporated into one nation, every district ought to have a PROPORTIONAL share in the government, and that among independent and sovereign States, bound together by a simple league, the parties, however unequal in size, ought to have an EQUAL share in the common councils, it does not appear to be without some reason that in a compound republic, partaking both of the national and federal character, the government ought to be founded on a mixture of the principles of proportional and equal representation.” (Federalist 62, Madison)
More to the point, the argument that a small minority of people can hold the majority hostage because of cloture is fatuous. Even without cloture, 51 senators representing the 26 smallest states could block any and all legislation. Those 26 states comprise just over 17.5% of the population. So, unless there is something magic about the difference between 11% and 17.5% of the population, or between 21 and 26 states it’s hard to see what this argument (which is fast becoming a favorite of the Progressive left), gets you except accused of hypocracy given that the left typically reles on the courts and the administrative state and has never concerned itself much with what the majority wants (e.g. Obamacare), except perhaps now that a slim majority favor marriage equality.
Third, one of the purposes of the Senate is to check legislation that is forged in the heat of passion and emotion, rather than through careful deliberation; i.e. “[t]he necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions. Examples on this subject might be cited without number; and from proceedings within the United States, as well as from the history of other nations.” (Federalst 62 Madison).
The background check bill was rammed through outside of the regular order, with few (if any) of the prodcural niceties, because the President declared SOMETHING HAD TO BE DONE IMMEDIATELY!!!!!! and used all the resources of his Office, many of the victims’ families, and his lackeys in the media to manipulate people into outrage that a measure that no one argues could have prevented Newtown wasn’t in place to prevent another Newtown. One can argue (and I do) that the purpose of the Senate was vindicated by the invovation of cloture in this instance. Simply put, in the battle between Madison’s Federalist 62 and Rham Emanuel’s famous statement “never let a crisis go to waste” Madison prevailed, which is exactly as it should be.
Exactly. Consider the flip side.