Filibuster Follies
Reid’s rotten ‘reform’
HERE’S what you should remember when you read about the battle over fundamentally changing the rules of the US Senate, a battle that will go on despite a deal struck yesterday to avoid a major partisan conflagration this week.
Superficially, the arguments made for change sound as if they’re more democratic than the current system — in which it takes a threefifths vote rather than a simple majority to move legislation through the Senate, and in which a single senator can block action on a variety of fronts for any reason he chooses.
Harry Reid, the Democratic majority leader, sounds reasonable when he says “the Founding Fathers wanted an up or down vote” on Senate matters save overriding a presidential veto, approving a treaty or impeaching a president. (For those, the Constitution requires a “supermajority” vote.)
But Reid’s remarks are a historical absurdity. In the first place, the Constitution gives the Senate and the House complete authority over how it works on a daytoday basis. The language is plain: “Each House may determine the Rules of its Proceedings.”
This means, in effect, that the Senate could decide everything would have to be approved unanimously to pass — and that would be entirely constitutional.
Even more important for Reid’s argument is this: The Founding Fathers designed the Senate to be the least “majoritarian” electoral institution any democratic society could possibly imagine.
For example, while the Senate is an extraordinarily powerful body, until 1913 its members didn’t actually have be to elected by the public. In many states, voters didn’t choose senators; state Legislatures did. (Because those legislators were chosen by the public, senators were considered “indirectly elected” officials.)
Why did the Founders make such a strange choice? Because the great issue at the time of the nation’s creation was the relative power of the states as opposed to the central authority of the national government.
The Senate was structured not to give voice to individuals or communities, as were the presidency and the House of Representatives, but rather to empower
states — to equalize their standing in Washington despite their differences in size and economic power and population.
And by giving legislators within the states power over the choice of senators, they were assuring that state capitols themselves played a role in the goingson in the national Capitol.
In practice, the system proved to be a mess. States would frequently fail to send senators to serve them when, say, Republicans controlled the state Senate while Democrats controlled the state Assembly and the two bodies couldn’t agree.
Finally, in 1913, the 17th Amendment was passed and senators became the popularly elected officials they are now.
Even so, the Senate remains fundamentally undemocratic in the sense most people understand the term. Its structure is itself a total violation of the “one person, one vote” principle.
Two senators and no more than two senators represent the voters of each state. In practice, that means the vote of a New Yorker is far less valuable and meaningful than the vote of some guy in Wyoming. New York has 19.5 million people, Wyoming 600,000 — and yet each state has the same number of senators.
This wildly dilutes the vote of someone from a large state and vastly enhances the vote of someone from a small state. When a New Yorker voted for Senate in 2012, he was one of 5.9 million to cast a ballot. When someone from Wyoming voted for Senate in 2012, she was one of only 243,000 — nearly 25 times more valuable than the New Yorker’s vote.
Thus, the whole notion that a simple majority “should” dominate when it comes to voting for legislation in the Senate doesn’t make logical sense. It is easy to come up with scenarios where 51 votes for a given piece of legislation would be cast by senators representing only 25 percent of the national population.
There may be good reasons for the filibuster to end, but none of them has to do with principle.
Generally speaking, Democrats want the changes now because they’re in the majority with a Democratic president. In 2005, Republicans wanted the changes because they were in the majority with a Republican president.
The sensible answer today is the same sensible answer that held in 2005: Don’t do it. These rules exist and have existed because they’ve made the Senate function better than it would have had they never been promulgated. Change them when it’s expedient for you, and you open Pandora’s box.
Maybe Washington is so broken that the contents of Pandora’s box is a better option than the status quo — but that’s what Pandora thought, too, and look what happened to her.