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

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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.

Congressional Reform Act of 2010

I received this e-mail today and agreed with it (mostly)... so I'm posting it here for ya'll to debate.

1. Term Limits: 12 years only, one of the possible options below.

A. Two six year Senate terms and six two year House terms
B. One six year Senate term and three two year House terms


2. No Tenure / No Pension:

A congressman collects a salary while in office and receives no pay when they are out of office.


3. Congress (past, present and future) participates in Social Security:

All funds in the Congressional retirement fund moves to the Social Security system immediately. All future funds flow into the Social Security system, Congress participates with the American people.


4. Congress can purchase their own retirement plan just as all Americans.

5. Congress will no longer vote themselves a pay raise. Congressional pay will rise by the lower of CPI or 3%.

6. Congress loses their current health care system and participates in the same health care system as the American people.

7. Congress must equally abide in all laws they impose on the American people.

Serving in Congress is an honor, not a career. The Founding Fathers envisioned citizen legislators, serve your term(s), then go home and back to work.

Franken Certified Winner in Minnesota

The Minnesota State Canvassing Board certified results Monday showing Al Franken, a Democrat, winning the Senate recount over Republican Norm Coleman.

Earlier today, the state Supreme Court rejected the Coleman campaign’s petition to count several hundred additional absentee ballots.

After this weekend’s tally of mistakenly rejected absentee ballots, Mr. Franken, the Democrat, was holding on to a 225-vote lead. The Supreme Court has declined the Mr. Coleman’s appeal to consider 654 more ballots.

This makes me wonder what could have happened had Al Gore fought for a recount in Florida in 2000...

Caroline Kennedy? There's Gotta Be Someone More Qualified

Caroline Kennedy has voiced her desire to be named to succeed Hillary Clinton as the junior Senator from New York after Hillary is confirmed as Obama's Secretary of State. I don't see it happening... Yes, I know that there may be sentiment for Teddy Kennedy to turn his Senate desk over to someone in the family... he sits in his brother's (JFK's) desk in the back of the Senate.

But that is no way to choose a replacement Senator. Kennedy's only "qualification" is having the last name of Kennedy. I guess she could learn on the job, but I hope Governor Patterson appoints someone more suited to hit the ground running (maybe AG Andrew Cuomo?)