The Senate 60 Vote Requirement

In this never-ending battle regarding shutting down the government amid the battle over the funding for a southern border wall, Democrats keep harping on the Senate 60-vote requirement. How could the framers of the Constitution be so short-sighted to think that 3/5ths of U.S. Senators would agree on any one issue?

But did the framers make that decision? NO!

Both Alexander Hamilton and James Madison indicated in the Federalist Papers a clear belief in majority rule, with Hamilton saying that “the fundamental maxim of republican government . . . requires that the sense of the majority should prevail.” Nonetheless, the Founders left the matter of House and Senate procedure undetermined in the Constitution, choosing instead to let Congress determine its own rules. Article I, section 5 of the Constitution, the Rules and Proceedings Clause, states that each House may determine the rules of its proceedings.”

That is exactly what the Senate did. In fact, the original Senate rules placed no time limit on debate, but also allowed any Senator to make a motion “for the previous question,” which permitted a simple majority to halt debate on the pending question and bring the matter to an immediate vote. This motion for the previous question was eliminated in 1806 at the suggestion of Vice President Aaron Burr, largely because it was deemed superfluous.

Even with the elimination of the motion to end debate, filibusters were hardly a defining part of the Senate. Across the entire 19th century, there were only 23 filibusters. And from 1917, when the Senate first adopted rules to end a filibuster, until 1969, there were fewer than 50, less than one per year.

Eliminating the filibuster on some nominations will not change the basic nature of the Senate as a legislative body. In fact, it is largely a restorative move, returning the Senate to its historical norms, when Senate giants like Henry Clay and Daniel Webster carried the day through the force of their ideas, rather than by manipulating rarely used Senate rules that allowed a small minority to block the will of the people.

Nor has the “Nuclear Option” turned  the Senate into the House of Representatives, as some have charged. The Senate will continue to differ from the House in significant ways. Senators will continue to be elected very six years, rather than every two years as in the House of Representatives. Senators from the smallest states will continue to have the same power in the Senate as Senators from the largest states. And the Senate will continue to operate in most instances based on unanimous consent, unlike the House. In addition, the reforms enacted by the Senate pertain only to nominations, which are themselves solely the responsibility of the Senate.

That is not to say that I would not support changing the filibuster with respect to legislation as well. If the Senate were to take that step, however, it would be critical that the changes preserve the rights of the minority to offer relevant amendments and to have extended debate. That the minority should be provided certain rights within the Senate is without question. But the minority should not have the ability to block legislation. When this happens it creates a situation, says James Madison in the Federalist Papers, in which, “the fundamental principle of free government would be reversed. It would no longer be the majority that would rule: the power would be transferred to the minority.” And many feel the current vein of political elitism and anti-white male is already destroying the majority rule of the people.

The fact is that the filibuster is not, and never has been, the sacrosanct soul of the Senate that some are making it out to be. The framers never envisioned that a supermajority of 60 votes would be required to enact virtually any piece of legislation or to confirm nominees. Indeed, the Constitution was very clear about where a supermajority was needed. There were only five instances in the original Constitution: ratification of a treaty, override of a veto, votes of impeachment, passage of the Constitutional amendment, and expulsion of a member.

Reform of the filibuster stands squarely within a tradition of updating the Senate rules as needed to strengthen an effective government that can respond to the challenges of the day. The Senate has adopted rules to reform the filibuster in numerous circumstances, such as war powers and the budget. And prior to Former Nevada Senator Harry Reid invoking the nuclear option, since 1917, the Senate had passed only four other significant reforms concerning the filibuster.

A frequently repeated Republican talking point when Reid led the Senate back to the simple majority in the case of nominations is that Senate Democrats were “breaking the rules to change the rules.” This may be a catchy talking point, but that doesn’t make it true. The original Senate rules actually included a means to end debate by a simple majority. And the Constitution itself specifies that “each House may determine the rules of its proceedings.” As Senator Robert Byrd, probably the greatest authority on Senate rules in American history, and himself a staunch opponent of filibuster reform said, “At any time that 51 Senators are determined to change the rule . . . that rule can be changed.” That is precisely what the Senate does whenever it invokes the nuclear option.

Some have argued that the rules change first seen in 2014 by the Senate was enacted simply so that Democrats could carry out their agenda. While this may have been true in the short-term, those with a longer view of history knew that, eventually, Republicans would come to power, and that Republicans would have the ability to carry out their own agenda. This is not only obvious, but appropriate. Democratic elections should have consequences. When the American people speak, whether they express a preference for Democrats or Republicans, those who win a majority at the ballot box should have the ability to carry out their agenda, and then be held accountable to the public.

The fact is that reform of the filibuster is not a Democratic or a Republican issue. At the heart of the debate is a single, simple question — do we believe in democracy? Do we believe that issues of public policy should be decided at the ballot box or by the manipulation of ancient Senate rules? Those who oppose any change to the filibuster rule, those who oppose the principle of majority rule, in reality are fearful that the people’s choices and wishes will be translated into action in Washington.

The Senate rules reform was not about a power grab or about the agenda of Senate Democrats. Rather, it was a vote of confidence in democracy and the good sense of the American people. Our union has remained successfully for more than two centuries because the American people have had the good sense to elect to Congress those whom they determine are most capable of carrying out their wishes, and to remove those who don’t. The American people do not fear democracy, and neither should their elected representatives in Congress.

Summary

There are some things regarding the Constitution that trouble me:

  1.  Originally Senators were appointed by governors and not elected. Why? Senators were to “represent the states.” My problem with the change is it throws the Senate into the popularity contest of elections rather than flying below the fray of having to campaign. Gubernatorial appointment makes much better sense to me.
  2. This 60-vote majority stuff is a hoax played on Americans. Yes, I understand the original intent when it was set was to force arduous and thorough debate without limits. But that was before America lived with “intstant everything.” US Senators today do not have the temperament or the stamina or sufficient fundamental knowledge of constitutional principles necessary to persuade opponents in debate. The current battle for border security is a case in point. Schumer — who is the supposed brainchild of Senate Democrats — made it quite clear why the 60-vote rule will not work: “President Trump, you will NEVER get your wall.” Decency, negotiation, compromise, nor what the American people want plays any role in this issue.

Some may claim that what we are experiencing now is exactly why we should have the cloture rule. I disagree. We’re in the middle of Bowl season with NFL playoffs about to start! And it’s Christmas!

Let’s just let Schumer, Pelosi, McConnell, and Trump play a game of “Go Fish” with a winner-take-all finish. Finishing this circus that way may be the only way to shut-down the illegal migration slush-fund.


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