Among the most treasured principles of American democracy are “one man, one vote” and “the majority rules”. Together, they ensure that the will of the people cannot be held hostage to the views of a determined minority. They are the secret of our political stability; they force compromise. Unlike so many other countries that change governments with the seasons, we have been blessed with stability and a government that never strays too far from the center of gravity of American opinion.
That is beginning to change, and America is the worse for it. If you are among the many who decry the lack of bi-partisan cooperation in Washington, what has happened in the U.S. Senate has helped fuel the acrimony.
How this is happening is a little bit technical. But, the implications are so important that it is worth looking at. Here is the bottom line:
It has now become conventional wisdom in Washington that no important measure can pass the Senate unless it has 60 votes—a 60 percent super majority. This has happened because the Senate Democrats have abused Senate rules and the Republican leadership has allowed them to do it. The legacy of the 109th Congress will be a new practice that weakens the need for compromise and empowers whomever is in the minority to block legislation and thwart consensus.
This is how it came about.
The U.S. Constitution, in Article I, codifies the principle of “one man, one vote” in the sections that created the Congress and its two houses: the House of Representatives and the Senate. The vote cast by each of our elected representatives is equal to those of all other members of the Congress. The Constitution is silent, however, on what the voting standard should be for the Congress to enact a law. It does require that a super majority be required for such extraordinary actions as: impeachment, expelling a member from the Congress, vetoing a bill signed by the President, or passing an amendment to the Constitution.
But it says nothing about what will be required to approve a bill or, in the case of the Senate, confirm a Presidential appointment to the Executive or Judicial Branches. Perhaps the American tradition of settling disputes on the principle of 50 percent plus one vote was so ingrained in our culture, that the authors of the Constitution felt it was unnecessary to spell it out. And, that has generally been the practice until lately.
Article I, Section 5, of the Constitution provides that “Each House may determine the Rules of its Proceedings. . . .” Thus, each has developed detailed rules of how it will conduct its business. They are different for each; generally, the Senate is much less restrictive on the rights of individual members. Under the Senate rules, the first Senator to ask the chair for recognition must be recognized and, once recognized, may hold the floor for as long as he or she is willing to speak. All business before the Senate stops at that point. The Senator holding the floor is in complete control and cannot even be interrupted without his consent—as long as the Senator keeps talking and doesn’t sit down.
The vast majority of the time, this is no impediment to the conduct of business before the Senate. A Senator will hold the floor only long enough to state a position or argument in the debate and then yield it to other Senators. But, when a Senator decides to capture the floor to force public attention to an issue, it makes for high drama. This is called a filibuster.
We’ve all seen the movie in which Jimmy Stewart bravely holds the floor to protest corrupt legislation until his eventual collapse from physical exhaustion shames the guilty into confessing the crime. In real life, the cause has not always been so noble (e.g. Sen. Strom Thurmond of South Carolina set the record with a 24 hour speech in 1957 to defend racial segregation), but the drama has been as compelling as the movies.
The Senator controlling the floor to champion a position forces all other 99 Senators to participate. A majority is forced to be available or on the floor regardless of the hour. Cots are brought in so that other Senators may sleep outside the door of the chamber to be ready for instant attendance when the quorum is called. It is physically and emotionally exhausting for everyone. But, the country is transfixed by the drama. It is perhaps the single most effective way to publicize a position for public consideration.
The only way to end a filibuster is to invoke cloture. This requires a 60 percent super majority vote. If all Senators are present this requires 60 votes.
Filibusters are messy and expensive. And, worst of all, from a political point of view, they can backfire. A Senator may feel strongly opposed to a position that a majority of the Senate and the American people would support. A filibuster will allow that Senator to bring everything to a halt for a while and focus national attention on his or her views, but it will also make that Senator personally responsible in the public’s eye for opposing a popular measure or nomination.
Wouldn’t it be more convenient if one could block legislation without ever taking personal responsibility for doing so? This is what is happening now.
The Senate has had a long standing, informal practice that allows an individual Senator to put a “hold” on a measure or nomination that will be coming to the floor for a vote. Implicitly, it is a notice that the Senator may filibuster the vote. A hold is secret. The name of the Senator requesting it is not made public. It has no standing in the rules and is not formally binding on the leadership. But, by custom, it is honored.
When a hold is placed, all action on that measure is stopped until the Senator changes his or her mind, the leadership breaks with custom, or cloture is invoked to preempt a filibuster.
This is the technique the Democrats have perfected over the past few years. A secret hold is placed on nominations and bills to which the Democratic leadership objects. This is done even when it is clear that a majority of the Senate—including Democrats—would vote to approve the matter. The Republican majority is then placed in the position of finding 60 votes to break the hold. Since the issue then becomes one of party solidarity on a procedural matter, that is a threshold that has been almost impossible to achieve.
The only way to circumvent a hold, as things are now done, is to have 60 votes in your pocket before you bring a bill or nomination to the floor.
As long as this practice is allowed to continue, it will increase in frequency until the vast number of bills and nominations are subject to it. We are not very far away from the point that passing legislation will require a three-fifth’s vote, not a majority. That is because blocking legislation in this way is a free gift of power to the minority. They have much to gain and nothing to loose.
When the ruling party has only a small majority, this practice increases the strength of the minority party. It gains not only negotiating leverage, but the power to disrupt or derail the other party’s legislative agenda. At the same time, there is no political risk or cost to do so. No individual member of the minority must take responsibility.
This is wrong. If a Senator feels strongly enough about a bill or nomination to block the entire chamber from taking action, then he or she should have the right to do so with a traditional filibuster. But, the Senator should also take the responsibility for his or her position. Let the country decide on the merits of the issue.
No Senate Majority Leader of the past, of either party, would have allowed stealth, in-the-dark filibusters to so weaken the ability of the Senate to fulfill its responsibilities. It is not too late to end the practice, and it should be done with the beginning of the 110th Congress in January.
That is beginning to change, and America is the worse for it. If you are among the many who decry the lack of bi-partisan cooperation in Washington, what has happened in the U.S. Senate has helped fuel the acrimony.
How this is happening is a little bit technical. But, the implications are so important that it is worth looking at. Here is the bottom line:
It has now become conventional wisdom in Washington that no important measure can pass the Senate unless it has 60 votes—a 60 percent super majority. This has happened because the Senate Democrats have abused Senate rules and the Republican leadership has allowed them to do it. The legacy of the 109th Congress will be a new practice that weakens the need for compromise and empowers whomever is in the minority to block legislation and thwart consensus.
This is how it came about.
The U.S. Constitution, in Article I, codifies the principle of “one man, one vote” in the sections that created the Congress and its two houses: the House of Representatives and the Senate. The vote cast by each of our elected representatives is equal to those of all other members of the Congress. The Constitution is silent, however, on what the voting standard should be for the Congress to enact a law. It does require that a super majority be required for such extraordinary actions as: impeachment, expelling a member from the Congress, vetoing a bill signed by the President, or passing an amendment to the Constitution.
But it says nothing about what will be required to approve a bill or, in the case of the Senate, confirm a Presidential appointment to the Executive or Judicial Branches. Perhaps the American tradition of settling disputes on the principle of 50 percent plus one vote was so ingrained in our culture, that the authors of the Constitution felt it was unnecessary to spell it out. And, that has generally been the practice until lately.
Article I, Section 5, of the Constitution provides that “Each House may determine the Rules of its Proceedings. . . .” Thus, each has developed detailed rules of how it will conduct its business. They are different for each; generally, the Senate is much less restrictive on the rights of individual members. Under the Senate rules, the first Senator to ask the chair for recognition must be recognized and, once recognized, may hold the floor for as long as he or she is willing to speak. All business before the Senate stops at that point. The Senator holding the floor is in complete control and cannot even be interrupted without his consent—as long as the Senator keeps talking and doesn’t sit down.
The vast majority of the time, this is no impediment to the conduct of business before the Senate. A Senator will hold the floor only long enough to state a position or argument in the debate and then yield it to other Senators. But, when a Senator decides to capture the floor to force public attention to an issue, it makes for high drama. This is called a filibuster.
We’ve all seen the movie in which Jimmy Stewart bravely holds the floor to protest corrupt legislation until his eventual collapse from physical exhaustion shames the guilty into confessing the crime. In real life, the cause has not always been so noble (e.g. Sen. Strom Thurmond of South Carolina set the record with a 24 hour speech in 1957 to defend racial segregation), but the drama has been as compelling as the movies.
The Senator controlling the floor to champion a position forces all other 99 Senators to participate. A majority is forced to be available or on the floor regardless of the hour. Cots are brought in so that other Senators may sleep outside the door of the chamber to be ready for instant attendance when the quorum is called. It is physically and emotionally exhausting for everyone. But, the country is transfixed by the drama. It is perhaps the single most effective way to publicize a position for public consideration.
The only way to end a filibuster is to invoke cloture. This requires a 60 percent super majority vote. If all Senators are present this requires 60 votes.
Filibusters are messy and expensive. And, worst of all, from a political point of view, they can backfire. A Senator may feel strongly opposed to a position that a majority of the Senate and the American people would support. A filibuster will allow that Senator to bring everything to a halt for a while and focus national attention on his or her views, but it will also make that Senator personally responsible in the public’s eye for opposing a popular measure or nomination.
Wouldn’t it be more convenient if one could block legislation without ever taking personal responsibility for doing so? This is what is happening now.
The Senate has had a long standing, informal practice that allows an individual Senator to put a “hold” on a measure or nomination that will be coming to the floor for a vote. Implicitly, it is a notice that the Senator may filibuster the vote. A hold is secret. The name of the Senator requesting it is not made public. It has no standing in the rules and is not formally binding on the leadership. But, by custom, it is honored.
When a hold is placed, all action on that measure is stopped until the Senator changes his or her mind, the leadership breaks with custom, or cloture is invoked to preempt a filibuster.
This is the technique the Democrats have perfected over the past few years. A secret hold is placed on nominations and bills to which the Democratic leadership objects. This is done even when it is clear that a majority of the Senate—including Democrats—would vote to approve the matter. The Republican majority is then placed in the position of finding 60 votes to break the hold. Since the issue then becomes one of party solidarity on a procedural matter, that is a threshold that has been almost impossible to achieve.
The only way to circumvent a hold, as things are now done, is to have 60 votes in your pocket before you bring a bill or nomination to the floor.
As long as this practice is allowed to continue, it will increase in frequency until the vast number of bills and nominations are subject to it. We are not very far away from the point that passing legislation will require a three-fifth’s vote, not a majority. That is because blocking legislation in this way is a free gift of power to the minority. They have much to gain and nothing to loose.
When the ruling party has only a small majority, this practice increases the strength of the minority party. It gains not only negotiating leverage, but the power to disrupt or derail the other party’s legislative agenda. At the same time, there is no political risk or cost to do so. No individual member of the minority must take responsibility.
This is wrong. If a Senator feels strongly enough about a bill or nomination to block the entire chamber from taking action, then he or she should have the right to do so with a traditional filibuster. But, the Senator should also take the responsibility for his or her position. Let the country decide on the merits of the issue.
No Senate Majority Leader of the past, of either party, would have allowed stealth, in-the-dark filibusters to so weaken the ability of the Senate to fulfill its responsibilities. It is not too late to end the practice, and it should be done with the beginning of the 110th Congress in January.
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