Tuesday, January 12, 2010

New York Times: The Senate is Unconstitutional

...the Senate, as it now operates, really has become unconstitutional: as we saw during the recent health care debacle, a 60-vote majority is required to overcome a filibuster and pass any contested bill. The founders, though, were dead set against supermajorities as a general rule, and the ever-present filibuster threat has made the Senate a more extreme check on the popular will than they ever intended.

This change to the Constitution was not the result of, say, a formal amendment, but a procedural rule adopted in 1975: a revision of Senate Rule 22, which was the old cloture rule. Before 1975, it took two-thirds of the Senate to end a filibuster, but it was the “Mr. Smith Goes to Washington” filibuster: if senators wanted to stop a vote, they had to bring in the cots and the coffee and read from Grandma’s recipe for chicken soup until, unshaven, they keeled over from their own rhetorical exhaust.

For the record, nothing like Senate Rule 22 appears in the Constitution, nor was there unlimited debate until Vice President Aaron Burr presided over the Senate in the early 180os. In 1917, after a century of chaos, the Senate put in the old Rule 22 to stop unlimited filibusters. Because it was about stopping real, often distressing, floor debate, one might have been able to defend that rule under Article I, Section 5 of the Constitution, which says, “Each house may determine the rule of its proceedings.”

As revised in 1975, Senate Rule 22 seemed to be an improvement: it required 60 senators, not 67, to stop floor debate. But there also came a significant change in de facto Senate practice: to maintain a filibuster, senators no longer had to keep talking. Nowadays, they don’t even have to start; they just say they will, and that’s enough. Senators need not be on the floor at all. They can be at home watching Jimmy Stewart on cable. Senate Rule 22 now exists to cut off what are ghost filibusters, disembodied debates.

As a result, the supermajority vote no longer deserves any protection under Article I, Section 5 — if it ever did at all. It is instead a revision of Article I itself: not used to cut off debate, but to decide in effect whether to enact a law. The filibuster votes, which once occurred perhaps seven or eight times a whole Congressional session, now happen more than 100 times a term. But this routine use of supermajority voting is, at worst, unconstitutional and, at best, at odds with the founders’ intent.

Here’s why. First, the Constitution explicitly requires supermajorities only in a few special cases: ratifying treaties and constitutional amendments, overriding presidential vetoes, expelling members and for impeachments. With so many lawyers among them, the founders knew and operated under the maxim “expressio unius est exclusio alterius” — the express mention of one thing excludes all others. But one need not leave it at a maxim. In the Federalist Papers, every time Alexander Hamilton or John Jay defends a particular supermajority rule, he does so at length and with an obvious sense of guilt over his departure from majority rule.

Second, Article I, Section 3, expressly says that the vice president as the presiding officer of the Senate should cast the deciding vote when senators are “equally divided.” The procedural filibuster does an end run around this constitutional requirement, which presumed that on the truly contested bills there would be ties. With supermajority voting, the Senate is never “equally divided” on the big, contested issues of our day, so that it is a rogue senator, and not the vice president, who casts the deciding vote.

The procedural filibuster effectively disenfranchises the vice president, eliminating as it does one of the office’s only two constitutional functions. Yet the founders very consciously intended for the vice president, as part of the checks and balances system, to play this tie-breaking role


Hamilton denounced the use of supermajority rule in these prophetic words: “The history of every political establishment in which this principle has prevailed is a history of impotence, perplexity and disorder.” That is a suitable epitaph for what has happened to the Senate.


G said...

It isn't unconstitutional. It is a procedural rule that the Senate has imposed upon itself. They can change the rule whenever they like. But I seriously doubt that they would. There is always the fear of what will happen if they eliminate the rule and then find themselves in the minority a couple years later.

While I appreciate the Times' reference to Alexander Hamilton, they fail to mention the fact that in his days congress didn't have the ability to rape the electorate through taxation. Nor did they foresee the bastardization of the "general welfare" clause that has been forced upon us over the past 100 years.

Also, back then members of the House of Representatives were able to actually represent their constituents. The number of people represented by each member has ballooned to the point where it can barely even be called representative government.


Couldn't have said it any better myself, g. And without any four-letter words too.

verification word: flaxest

csm said...

Seriously interested in what you guys would do to fix the "number of people represented" problem? I agree that it is a problem but don't necessarily see the fix being the addition of more districts and more reps.

G said...

I actually think more districts and more representatives would help. Right now, each representative is "serving" on behalf of (on average) more than a half million voters. There are very few places in the nation where a single person could be representing the interests of that many people.

If we went near the max number of reps allowed by the Constitution (one per 30,000 constituents), there would be more than 8,000 representatives. Thirty years ago, that would have been incredibly impractical. But in our digital age, everybody doesn't have to be physically in the same place. With that many reps, the wheeling & dealing payoffs for bills would become nearly impossible to accomplish.

I'd also like to see a broad requirement (for the house) that each member hold a certain number of public office hours in his/her district (maybe 150 hours/year, which averages under 20/week) so they are available to hear from their constituents.

I like the idea of term limits to a degree. But in the house, they might not be necessary if the represented population is reduced so significantly. I'm not as concerned about the senate since they're supposed to be representing their states (rather than localities). At the same time, I despise the idea of career politicians. So if it were up to me, I'd like to see a two term limit for all elected and appointed federal offices (excluding the Supreme Court), with an additional stipulation that after serving one's term, the person would be barred from further federal offices (again, elected and appointed) for the length of one term (so a rep would be on the sideline for 2 years, a senator for 6, a VP for 4, etc.).

I think that something along those lines would make the federal govt far more representative and would mostly eliminate the eternal campaigns we now see. The pres, VP, senators & congressmen could be focused on the job at hand since there is nothing available to them in the short-term.

I'd also like to see a requirement that every debate be open to every candidate that is on the ballot. I'd like to see the people given recall power toward their senators and congressmen. I'd like to see a line-item veto for the president. I'd like to see a requirement that each bill clearly identify the part of the Constitution that authorizes it, along with a simple means of immediately challenging that constitutionality (say a demand by 10% of the house, 10% of the senate, or a single governor) and having it go before the SCOTUS.

I'd like to see a requirement that all legislation that involves federal tax dollars (either coming in or going out) have a new debate and vote regarding extension at least every 5 years.

I could go on, but that's quite a bit to digest.