Maine senators could push filibuster reform, end tyranny of the minority

 

Gordon L. Weil

As the new Senate prepares to convene, moderate senators like Maine’s Collins and King could take the lead to end the tyranny of the minority by reforming the historic filibuster.  It is undemocratic and undermines good government.

The Constitution provides that both houses of Congress make almost all decisions by a simple majority, one vote more than half of the members.  The few requiring two-thirds include ratifying treaties and convicting impeached officials.

The Senate sets its own rules.  From 1789, when it first convened, until 1917, the Senate favored unlimited debate with no rule to cut it off.  In the absence of such a “cloture” rule, opponents of a measure might occasionally try to continue debate endlessly – the filibuster.

In 1917, President Woodrow Wilson asked the Senate to adopt a “cloture” rule, making it possible for two-thirds of the senators to end debate and proceed to a vote. Wilson worried that unlimited debate could block necessary actions during World War I.

The filibuster became the tool of choice of southern senators seeking to block civil rights legislation.  Usually once or twice each session, a talkathon took place, impossible to overcome with a two-thirds vote cloture rule. Finally, in 1964 the Civil Rights Act passed after cloture was voted.

Senators were originally meant to be representatives sent by state legislatures to the federal government.  But the Constitution was formally amended to require that they be popularly elected.

The Senate has changed cloture.  It has become an almost routine part of its lawmaking. 

First, it is easier to end debate, because the required majority was dropped from two-thirds to three-fifths, now 60 of the 100 senators. It became more tempting to use, because it seems somewhat more democratic.  It takes a 41-member minority to block that majority and thus control the Senate by preventing final votes.

Second, congressional Republicans adopted strong party discipline.  GOP senators are expected to see themselves less as representatives of their states and more as member of their party. The result is that, if there are 41 Republican senators, they could determine if an issue came to a vote.

In practice, the intent of the Framers of the Constitution that Congress should act by a simple majority was informally amended away.  Some people may believe in “strict construction” of the Constitution, meaning it should apply as written, but this change joined many other practical “amendments” over the years. 

In recent years, both parties abolished the supermajority required for cloture on almost all presidential nominations.  The GOP extended it finally to include Supreme Court justices.  Cloture by 60 senators remains for almost all issues.

The people and parties came to mean more than being state delegates.  Still each state has equal representation in the Senate.  In 1789, Virginia, the largest state, was considered to have a population ten times greater than Delaware.  Today, California has a population 69 times greater than Wyoming.

The practical effect is that a majority of the senators can come from states with only one-fifth of the national population.  Though that may never happen, it is a sign that minority rule is possible.  It can certainly happen when only 41 senators are required to prevent a vote.

Despite the gradual whittling down of the cloture vote, each party preserves it to protect their influence for a time when it may be in the minority. This minority veto might promote compromise, but it now yields deadlock.  Important measures, like the stimulus package, have been blocked. The filibuster survives.

It would make sense to find a way to preserve the requirement for something more than a simple majority to end debate.  But a new rule should prevent senators representing only a fraction of the population from overruling senators representing the majority of people.

Here’s the solution. Debate should be ended by a simple majority, but the majority for ending debate must include senators representing more than half of the U.S. population.  For this purpose only, each senator would represent one-half of their state’s population in the previous census.

The result would almost always require cloture to be voted by senators from both parties. It would retain the filibuster’s higher hurdle before a final vote, while preventing minority control and promoting cooperation.  It is closer to the Constitution’s original intent than the current rule.

This is called a “qualified majority.”  In reality, it’s a simple majority of both the states and the people. Versions of it are used in the EU and in Switzerland.  Both combine votes by state-like entities with a popular majority. They ensure broader support for major decisions, but prevent minority rule.

The Senate adopts its rules in January. Instead of sticking with today’s undemocratic cloture rule, Maine’s two independent-minded senators could offer this practical proposal in the opening caucus of each party.