The United States Senate: Our Undemocratic National DisgracePosted: April 18, 2013
Blame 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.