Monday, November 25, 2013



The tradition of unlimited debate in the U.S. Senate, while not a Constitutional provision, is based on a Senate rule that goes back over a century.  It is only the unwieldy size of the U.S. House of Representatives (435 members) that made such a tradition impossible.  Until just recently, the rule reflected the basic governing  philosophy  of the creators of the Constitution, which was divided government, checks and balances and the avoidance of concentrations of power. 

The filibuster, which was the embodiment of unlimited  debate in the Senate, certainly has been abused by both political parties depending on which party was in the majority in the Senate.  Suggestions to change the rule however, have been opposed in the past by prominent politicians of both parties i.e. former Senator Barack Obama (D-IL) and, current Majority Leader Senator Harry Reid (D-NV).  Now, Senator Reid, with the support of the thin Democrat majority in the Senate and the concurrence of President Obama, has changed the rule to do away with the filibuster by changing the requirement for ending debate (“cloture”) from sixty votes to fifty-one, a simple majority.

This was brought on by the fact that the Democrats did not have the necessary 60 votes and the Republican minority was not cooperating with respect to the President’s choices of Cabinet secretaries and federal judges.  The Constitution does not demand acquiescence by the Senate in such nominations.  It specifically requires the “advise and consent” of the Senate to approve those choices.  If the Senate is expected to automatically approve the President’s nominations then the “advise and consent” provision of the Constitution has no meaning.  That of course, was clearly understood though most of U.S. history until now. 

Defenders of Senator Reid’s initiative reside totally in the liberal wing of the Democrat Party. They argue that a simple majority is a manifestation of “true democracy” i.e. majority rule. This is the basis of the parliamentary system of government in which the leader of the majority party in the lower legislative body is always the chief executive (Prime Minister).  Thus this is a system of one party rule which America’s “founders” rejected, unless provided by elections to both houses and the presidency. Although it has occurred occasionally through U.S. history, it represented a concentration of power which the various requirements for super majorities off-set. The liberal “wing” actually makes up most of the Democrat Party who support the President’s nomination of liberal judges for the federal courts, especially three vacancies on the Federal Court of Appeals for the District of Columbia Circuit which hears most appeals involving the federal government.  This makes this court the most important federal court after the Supreme Court.  This also makes the importance of the now defunct cloture rule of sixty votes compatible with the “framers” belief that issues of great importance should require super-majorities, requiring a significant portion of the minority which would then demonstrate a higher level of consensus than just fifty percent plus one.

The Constitution makes clear the importance of such a belief.  The President, or his delegated representative, may negotiate and sign treaties with foreign powers but the Senate must ratify such treaties by a two thirds vote for them to become U.S. law.  The Constitution itself may be amended but this highly important process requires a two thirds vote in both houses of Congress and under the usual process, a three fourths concurrence by states legislatures.

Impeachment of federal officers, including the President and federal judges requires a two thirds vote in the “trial” portion of the process which occurs in the Senate.  Confirmation of federal judges, who serve for life, is also a matter of high importance and the super majority of the previous cloture threshold was entirely appropriate.

What Senator Reid and the Democrat majority has done is make an ideologically driven change of an historic Senate rule for short term gain; short term because the Senate, and the Presidency will not permanently remain in Democrat hands.  The political pendulum will shift but the nation’s political process will suffer in the long run.

No comments: