Majority rule just a vote away in Congress, but Biden opposes it

 

Gordon L. Weil

Majority rule is the law of the land. 

The Framers put that democratic idea into Constitution.  It didn’t happen. Despite their good intentions, from 1789 to 1917, a single U.S. senator could bar a congressional vote and, since then, a Senate minority can block Congress.

Now the Senate’s historic power grab to prevent majority rule is back for a new test.

Here’s the twisted story. The Framers provided for a simple majority – one vote more than half – in both the House and Senate.  They only allowed supermajority voting in a few cases, like impeachment or overriding a presidential veto. 

Because the House is elected every two years, they wanted to avoid rash decisions it might make and gave senators six-year terms and supposedly a more detached view. The Senate went further and gave itself the ability to kill a House bill by requiring all senators to agree to end debate and vote on it. A single senator could refuse to allow a vote.

That ended in 1917. President Woodrow Wilson was fed up with the Senate’s failure to act on measures relating to World War I.  He got it to agree that two-thirds of the senators present and voting could end debate. That would be 67 senators today, if all are present.

Only five times in the next 46 years did the Senate cut off debate, a process called cloture, and then vote.  Southern senators talked without a break, called a filibuster, making a cloture vote impossible on civil rights for African Americans.  Cloture was seldom even tried, because of the inevitable filibuster.

In 1964, cloture worked and the filibuster could not block major civil rights legislation.  The Senate would soon change the number of senators required to end debate to three-fifths of all senators, now 60 senators, not merely those present. That looked easier, but it could make cloture more difficult. 

Added to that, the filibuster talkathon was abandoned, so there was no need to debate endlessly to kill a bill. The filibuster threat itself was enough and making threats was easy.

The 60-vote requirement even to begin discussion of a bill meant that a supermajority, not a simple majority, was required to pass legislation.  That majority vote was almost always impossible without cooperation by both parties.  In effect, the rule should promote compromise, but the results were disappointing.

Congressional Republicans increasingly adopted strict party discipline.  GOP senators deployed the 60-vote requirement frequently when the Democrats controlled any other part of the federal government.  Why compromise, when you can control government even while in the minority?

Of course, the Democrats could do the same. As a result, they did not want to eliminate the cloture rule. The power of the minority loomed so large that Congress risked being unable to function at all. The tide had to turn.

In 1974, the Senate decided that the federal budget, which sets spending and revenue targets, would be decided by a simple majority.  Bills modifying spending or revenues, through a process known as reconciliation, also require only a simple majority.  One purpose was to allow a newly elected president, arriving in the middle of the budget year, to shape his own budget.

Majority rule had appeared for the first time in the history of Congress.  Every president from Ronald Reagan to Joe Biden has used reconciliation.  Barack Obama’s Affordable Care Act and Biden’s recent coronavirus stimulus relied on it to gain Senate passage.

When Obama was president, Republicans in the Senate minority blocked his appointments of federal judges by denying cloture.  The Democrats answered with the so-called “nuclear option” to end debate on presidential appointments, except for the Supreme Court, by a simple majority. More majority rule.

In 2017 the Democrats, by then in the minority, wanted to block Trump’s nomination of Neil Gorsuch to the Supreme Court by refusing to end debate.  The GOP majority changed the rule to allow even Supreme Court appointments to require only a simple majority, and Gorsuch was confirmed. Still more majority rule.

Non-budget bills, like the current Democratic House bill to promote voter participation, continue to require 60 votes.  Such bills would only pass if a simple majority could end debate, creating total majority rule.

The voting rights bill, passed by the House, has now put the issue before the Senate.  The bill is a broad effort to counter GOP attempts to limit voter access. It deals with matters ranging from districting to ethics.  It faces new Republican efforts in many states to limit the access of traditional Democratic voters to the ballot box.

If Senate Democrats really wanted the pending voting rights bill to pass, they could end the minority veto.  But Biden, a long-term senator does not favor ending the filibuster. Instead of fighting out the House bill, the White House says he prefers to focus on infrastructure and immigration where he may hope for GOP support. If that’s lacking, he could reconsider.

The argument against majority rule is that the minority will lose any influence.  Biden agrees, though his dreams of compromise may not materialize. He may gamble that legislative success may help Democrats more than election reform.  That leaves the Senate minority all powerful; it keeps its veto.

Though it may be the time for constitutional “originalism,” the old political games are likely to continue.