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U.S. Senate 1789-2013, R.I.P.

U.S. Senate 1789-2013, R.I.P.

 

On Thursday November 21st, Majority Leader Harry Reid and 51 of his Democrat colleagues voted to destroy the United States Senate as the world’s greatest deliberative body. In truth it hasn’t been able to make that claim for years. However, they stopped the faintly beating heart of Senate democracy by uprooting the rules of the Senate. They changed it from the institution the founders created, which allowed for careful and extended consideration of policy actions, to a copy of the House of Representatives ruled by the bull rush of a simple majority vote. While the change in the rules last week only applied to Senate confirmed nominations below the Supreme Court level and for politically appointed executive branch leaders, no one believes that it will stop with nominations. It is only a matter of time before the Democrats, or possibly the Republicans, change the rules of debate so that they can pass legislation with a simple majority vote.

 

This is a very obscure change in the Senate as an institution that most Americans don’t have the time to follow or understand. For a complete explanation of the filibuster rule read Brian Darling’s piece written for the Heritage Foundation: http://www.heritage.org/research/reports/2012/06/tyranny-in-the-united-states-senate.

 

Where do we go from here? Can the damage be undone? Can you put the genie back in the bottle?

 

Most people think that there will be no more action to tear down the Senate rules in the 113th Congress. The thinking goes like this: the Democrats don’t expect any legislative victories in 2014 with the House in Republican hands, so they will not change Rule XXII. This makes sense as far as it goes, but what if one of the five justices appointed by Republican Presidents leaves the Supreme Court bench in 2014? Is anyone willing to seriously argue that the current group of Senate Democrats won’t change the rules of the Senate again to eliminate the 60 vote threshold for Supreme Court nominations? Of course not! It wouldn’t take a New York minute for them to further erode Rule XXII.

 

Should the Democrats keep their majority in the Senate in the 2014 elections and retake a majority in the House of Representatives, the first change they would make is to allow all legislation to be passed by a simple majority. The Obama utopia would not be restrained by some silly rules created by the Founding Fathers over 200 years ago.

 

Likewise, if Republicans control the House and the Senate and win the White House in 2016, you can expect them to change Rule XXII so that they can pass legislation eradicating Obamacare by a simple majority.

 

Tit for tat may make people feel better, but it will do irreparable harm to the Senate as it was constituted by our Founding Fathers and developed over the last two centuries.

 

There may be an alternative. A brief moment in time when Republicans, rejecting their base instincts, and Democrats, realizing the folly of their action, can come together to restore the venerable rules of the Senate and return it to the institution the founders believed was essential to the legislative branch of the federal government. If Republicans hold the majority in the House of Representatives and a Republican majority is elected in the Senate in 2014, that moment in time will occur.

 

If the 2014 elections result in a Congress dominated by Republican majorities in both the House and the Senate, the first action taken in 2015 should be to restore Rule XXII for all nominations. But that is not enough. To redress the violation enacted by the Democrats last week, two other changes must be made so that the rules are never abused again. First: enact a new permanent Senate rule that will require the votes of 67 Senators to overturn the ruling of the chair. Second: make a change in the rules so that no one is allowed to “fill the amendment tree” (a mechanism which essentially prohibits amendments).

 

It would take a bipartisan vote of at least 67 senators to make these two rules changes, but once they are enacted, the Senate rules would be protected from assaults by the anger of petty majorities. These two changes would take a healthy step in returning the Senate to democratic principles. No longer would a majority Leader be able to stop amendments and debate by throttling democracy. Sure, it would mean some uncomfortable votes for both Republicans and Democrats, but isn’t that why they get the big bucks? And isn’t that the purpose of democracy?

 

I believe that if senators had a chance to offer amendments and get votes on those amendments, a lot of the frustration would dissipate and the Senate would begin to function again. Clearly it would make Harry Reid and all Majority Leaders who follow him less powerful, but I think America can handle a Senate with real debate and votes. Indeed, the institution just might thrive with a return to democracy.

 

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