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Senate Filibuster Protects Minority Rights

Senate Filibuster Protects Minority Rights


The founding fathers had a healthy fear of big central government. The reach of the King and Parliament from across the ocean was a cautionary lesson as they labored to create our constitution. Thus, they created a system filled with checks and balances not only among the branches of government but within the legislative branch itself. Article I lays out requirements that limit the powers of the federal legislature and its ability to act. Clearly they saw the Senate as a check and balance on the House of Representatives. They wanted to make it difficult for the central government to pass legislation.

The House is an institution where the majority rules. The protection of minority rights in the Senate has always been a critical difference between the two bodies. It provided that a small group, or even one, senator could force careful, slower consideration of any legislation. For more than 200 years, in different forms, the Senate has aggressively protected these minority rights. Often times it has been the two ends of the political spectrum who have united to protect minority rights in the Senate. Yes, it made it harder to pass legislation, a position many conservatives see as a good thing.

In a turn of events that would shock Senator Jesse Helms, a group of conservative voices have begun to suggest that the filibuster rules that protect minority rights in the U.S. Senate should be vacated so that a temporary Republican majority in the Senate can overturn the health care law, defund Planned Parenthood, and stop the President’s new agreement with Iran. The great irony is that if such a change were made and legislation was passed to reverse the health care law, defund Planned Parenthood and stop President Obama’s Iran agreement none of those goals would be achieved because of President Obama’s veto. What would be accomplished, however, is the destruction of minority rights in the Senate.

This is short sighted and wrong. Institutions that have served the country well for more than two hundred years should not be torn asunder especially when no purpose will be served by doing so.

Without Senate rules protecting minority rights, we wouldn’t have had just Obamacare, we would have single-payer, socialized medicine in the United States passed in 1994. We would have President Carter’s flawed energy plan with fewer jobs and slower growth for the last three decades. We would have national same-day motor voter registration. We would have no right to work in the United States, and the second amendment would have been eviscerated.

Eliminating, or even suspending, the rules that protect minorities in the Senate is a slippery slope that will end up sacrificing the Senate as a legislative body that protects minority rights, and will result in a Senate that is just a pale mirror image of the majority rule House of Representatives. It is much harder to get 218 votes in the House than it is to get 51 votes in the Senate. The reason is because in the Senate peer pressure is much more powerful that it is in the House. By its very nature and size the House is an institution where there are many small groups of members who have united to achieve their goals. As long as the group holds together, they can withstand enormous pressure from leadership, the White House and their peers. The Senate is an institution of ever shifting coalitions where members have individual rights and greatly value their independence. However, this makes them more subject to the peer pressure in the one place they are united, their party caucuses. This is the peer pressure that forced Democratic members of the Senate, who knew better, to bend to the pressure and blow up the Senate rules in November of 2013.

Now some conservatives are falling into the same trap and demanding that the rules that provide the checks and balances in the legislative system be repealed. This will mean over time that more and worse legislation will pass with raw majority power. It will make it much easier to pass legislation. Not what the founding fathers imagined or created. And it doesn’t have to be done. If the goal is to get rid of the ACA; it can be repealed by reconciliation. If the goal is to stop the executive agreement with Iran, then the next President should submit it to the senate as a treaty. If the goal is to defund Planned Parenthood, then revive the appropriations process and pass a bill to defund them and send it to a President who will sign that legislation. Don’t ruin the Senate and fail to achieve tactical, if extremely important, goals.



Unintended Consequences


Unintended Consequences


Much has been made of the political fallout of failing to reach cloture on the nomination of Debo Adegbile to be the Assistant Attorney General for Civil Rights. It also revealed two unanticipated, but significant, problems with the November rules change forced on the Senate by Majority Leader Harry Reid. The procedural flaws that it revealed are even more interesting than the political firestorm.


The first flaw is that by changing the number of votes required for cloture for most nominations (excepting Supreme Court Appointments) from “three-fifths of the Senators duly chosen and sworn” to a simple majority of Senators present and voting, it is now possible for a mere 26 senators to obtain cloture and confirm most executive branch appointments. It could take barely more than one-quarter of the senators to force through a nomination. This is something never imagined by the founding fathers.


The second flaw is more pernicious than the first. The popular press focused on the fact that Senator Reid had requested that the Vice President be in attendance to break a tie vote, if that occurred. The first tie vote anticipated by Senator Reid was on the vote for cloture on the nomination. In the whole history of the United States Senate, it has never been contemplated that the Vice President, who is not a member of the Senate, could be allowed to vote on whether duly chosen senators wanted to end debate on any issue or nomination.


Heretofore that was never a vote in which the Vice President would conceivably be involved because there is no tie to break if cloture takes a super-majority. Because of the change in senate precedent engineered by Senator Reid, now it is an issue which needs to be addressed.


The constitution states in Article I, Section 3 that “the Senate of the United States shall be composed of two Senators from each State…” The Vice President is not a senator. The constitution further directs that “the Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.” From its very first days, the Senate worked by unanimous consent. Votes were taken only when all senators had been given their full right to debate and offer amendments. The cloture rule was adopted in the early 20th century. When adopted, it recognized the history of the senate in protecting minority rights. Article 1, Section 5 states that “Each House may determine the Rules of its Proceedings…” The rules of the Senate do not allow the Vice President to speak in debate.


Senator Reid planned to have the Vice President of the United States vote on the matter of cloture last week. That would be a further change in the rules that would allow the Vice President, who is not a member of the Senate, to determine when debate is ended thus limiting the rights of duly elected senators. This would give a member of the executive branch of the government the right to end debate in the United States Senate.


I don’t think Senator Reid thought about that last November when he broke the rules to change the rules, and I know the founding fathers never contemplated that the executive branch of the government would have that kind of power over the legislative branch of the government.






Debate and Votes in Congress

Debates and Votes in Congress


Final Jeopardy category: Representative Democracy

 “This house of the US Congress allows more amendments and has a higher degree of bipartisan activity while acting on legislation.”

“What is the House of Representatives?”

When the Founders wrote the Constitution they created two bodies in the legislative branch of the government. The House of Representatives was to provide equal representation for all the people; that meant that states with a large population would have a greater number of votes in the House than states with fewer citizens. The small states demanded a second legislative body that would represent the small population states on an equal basis with the large population states. The constitution provided that each state would be represented by two Senators no matter what their population.

As the population of the United States grew, the number of members of the House grew with it. The rules of the House required that this larger institution allow for limited debate and final action by a simple majority vote on legislative issues before it. Madison saw the Senate as a counter to the “fickleness and passion” that might arise in the House. He said, “Use of the Senate is to consist in its proceeding with more coolness, with more system and with more wisdom, than the popular branch." The rules of the Senate allowed for unlimited debate. The minority in the Senate is given the power to cool the passions of the simple majority. Senate rules evolved to provide for a super majority vote for cloture to terminate debate on legislation and, until last November, to vote on nominations.

For most of our history the Senate has allowed for extended debate. It has been the place where senators could offer their amendments, both relevant and on any topic they desired, and get votes. It referred to itself as the world’s greatest deliberative body. That is no longer the case.

Most people would say that the House of Representatives -- with its limited debate, Rules Committee and strict majority control -- is the more highly partisan of the two institutions. For much of the history of the United States that has been true whether under Republican or Democrat control. However, from July through December last year, the Republican minority members of the Senate were allowed to offer only four amendments. In the House of Representatives, with its restrictive Rules Committee controlled by the majority Republicans, the Democrats offered more than 70 amendments.

Further, if you look at the amount of legislation acted on by the House, a significant amount of that legislation is passed on the floor of the House under suspension of the rules. That requires a two-thirds majority of votes to pass a bill. Thus by definition, the legislation must have substantial bipartisan support to pass the House. Add to that the business that is completed in the House by unanimous consent, and you have a significant amount of the work completed by the House of Representatives with bipartisan cooperation.

Compare that to today’s Senate; it is exceedingly rare for legislation to be developed by committees and reported to the floor of the Senate for consideration. The amendment process in committee that plays a role shaving off the rough edges of partisan policy and developing bipartisan support no longer takes place. When legislation is brought to the Senate floor for debate and votes, it is almost never open for debate and amendment by either Republicans or Democrats. More often than not in today’s Senate, the Majority Leader, Senator Reid, is the only one who gets to offer amendments. He does this by “filling the amendment tree.” This means that he offers enough amendments to stop any other amendments from being offered. Then he files cloture on the legislation so that one of two things happens: either he gets a vote on the legislation he wants with no alternative amendments offered or he fails to get cloture and blames the Republicans for a filibuster.  “Filling the amendment tree” is in fact a filibuster by the majority so that they don’t have to debate or vote on amendments. While some legislative work is still done by unanimous consent in the Senate, it is less and less in recent years. The imperious control of the Senate majority has left little bipartisanship in the operation of the Senate.

Today one would have to say that the House is the more bipartisan and democratic body of the two. The House allows more debate and more amendments by the majority and the minority. The House completes more legislation with more minority input than the Senate.

The Senate is a shell of the legislative body that the Founders created. It no longer performs its role of the “saucer” that cools the passions of legislation. Today it is an institution whose only purpose is to defend its majority members from the need to think, to debate, and to vote.