In so very many respects, from separation of powers and checks and balances to the gerrymandering of Congressional districts, state-sanctioned efforts to suppress voting by ordinary citizens, and the roles that unlimited sums of money and influence-peddling now play in American politics, the government of United States increasingly resembles that of banana republic, ill-equipped to meet the needs of its citizens in the twenty-first century. The U.S. Senate is a case in point.
Senate Majority Leader Harry Reid and a number of Democratic Senators-elect have proposed to amend the cloture rules of the U.S. Senate to permit filibusters to be shut off by a simple 51 vote majority of members, as opposed the present provision that requires the assent of 60 Senators to even bring legislation to the floor for consideration. Not surprisingly, Senator Reid's proposal has induced apoplexy among GOP legislators, and it has prompted the Republican noise machine to go into overdrive as it tries to persuade ordinary citizens of the benefits that accrue to them from the continuation of political paralysis at the national level.
Recently, in an op ed column in The Boston Globe entitled "Burning Down The Senate," (December 3, 2012).former New Hamsphire U.S. Senator and GOP propagandist John E. Sanunu extolled the existence of the filibuster. Sanunu argued that "Since the chamber's inception, the basic principles at work in the US Senate have been simple. When legislation is brought to the floor, all members are given the chance to speak and offer amendments. When they are done speaking and amending, they vote. The design protects the rights of the minority as well as the rights of individual senators, no matter their party affiliation. All the rules of the Senate are intended to facilitate -- not restrict -- this process."
Sanunu's argument is little less than a specious attempt to defend the indefensible. Filibusters today are not intended to give Senators an opportunity to talk or to offer amendments. Rather, they are solely calculated to prevent legislation from being voted upon without even a requirement that those Senators who wish to filibuster take to the floor and speak until exhausted or incapacitated. Nowadays, the mere threat of a filibuster is sufficient to bring the machinery of government to a standstill.
The concept of a Senate - whose members before the adoption of the Seventeenth Amendment in 1913 were appointed by the state legislatures - was created by the framers of the Constitution as a device that would serve as a check to control the popularly-elected House of Representatives and to ensure that the interests of property owners would be protected. Article 1, ยง 3 of the U.S. Constitution guarantees each state two senators, irrespective of population. This peculiar and patently undemocratic provision was originally included in the Constitution as a compromise to protect the interests of property-owners in the original slave-holding colonies and to persuade them to accept the Constitution.
James Madison defended the idea of a Senate and disguised his personal investment as a slave owner in that "peculiar institution" by addressing his appeal for a new constitution to the broader interests of commerce. As he explained in The Federalist No. 62:"....great injury results from unstable government. The want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements.... What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government?....No government, any more than an individual, will long be respected without possessing a certain portion of order and stability."
Today, the Senate, despite the adoption of the Seventeenth Amendment, is a deeply dysfunctional entity that primarily serves the moneyed interests and their army of lobbyists who benefit from the existing gridlock.
Over the course of past 220 years since the Connecticut Compromise was negotiated at the Constitutional Convention, the composition of the Senate has become increasingly less representative. At present voters in rural America and in the less urbanized areas of the country exercise disproportionate political influence over this country's policies and priorities. For example, the rural and almost uniformly white state of Wyoming, with some 530,000 citizens, has the same number of U.S. Senators as the ethnically and economically diverse state of California which, as of 2009, had a population of about 37,000,000 citizens.
The ability of a small minority of Senators to impose its will and to prevent colleagues from voting on proposed legislation is illustrated by the case of departing Massachusetts Senator Scott Brown who was defeated by Elizabeth Warren. In 2010, in his first vote as a newly-elected Senator, Brown voted to sustain a filibuster that prevented the Senate from even taking a vote on one of President Obama's nominees to the National Labor Relations Board, Craig Becker. Becker, a former lawyer for the AFL-CIO, had been chosen to fill one of the two open seats which, as a matter of policy, only a member of Democratic Party may hold. Becker's nomination was opposed by the U.S. Chamber of Commerce and the National "Right To Work Committee" which claimed that he was too pro-labor.
The Daily Kos (May 7, 2012) reported that, thereafter, Brown supported GOP filibusters that had the backing of at least 50 Senators - measures that failed but would have passed on an up-or-down vote - 40 times out of 53 roll call votes, or 75.5% of the time.
Prior to election of Scott Brown, the 40 Republican Senators represented only a third of the population of this country, which fact meant that Republican voters already had more representation than anyone. With the addition of Scott Brown's vote, Senate Republicans were thereafter able thwart the will of the majority of voters - who elected President Obama - and pander to the entrenched interests of the status-quo.
In Reynolds v. Sims, 377 U.S. 533 (1964) and companion cases in the 1960s, the U.S. Supreme Court endorsed the principle of majority rule based upon the concept of "one person, one vote." As the Court held in Reynolds, "[A]n individual's right to vote for State legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State." The effect the court's decisions was thus to overturn unequal voting districts in state and local elections. As applied to the federal government, this principle of equality had been previously determined by the U.S. Supreme Court, under the rule of Bolling v. Sharpe, 347 U.S.497(1954), to be implicit in the due process clause of the Fifth Amendment to the U.S. Constitution.
Despite the adoption of the 14th Amendment to the United States Constitution, the Supreme Court has declined to extend the principle of basic voter equality to the United States Senate. Its unwillingness is undoubtedly rooted in the doctrine of separation of powers that declares the Senate to be part of co-equal branch of the government; it is perhaps also based on the misplaced theory that the United States, as a federal republic, is constitutionally permitted to treat voters unequally. (Note, however, that the doctrine of judicial abstention did not prevent five unelected justices of the Court from intervening to determine the outcome of the Presidential election in Bush v. Gore, 531 U.S. 98 (2000).) But this reluctance by the Supreme Court to act does not obviate the fact that the U.S. Senate, as an institution, is profoundly anti-democratic and that basing its representation upon states rather than population denies all citizens the equal protection of the of the laws.
The Founders intentionally made it difficult to amend the Constitution by declaring, in Article V of the Constitution, that any proposal to amend the constitution required a vote by 2/3ds of the Senate or the state legislatures, and then had to be approved by three-fourths of legislatures of the fifty states or conventions therein, before any such amendment could become effective. Hence, it is virtually impossible to abolish the Senate as an institution altogether - or at very least to reorganize it by representation based upon broader geographic regions of equal population.
Given this high hurdle, it is essential that policies and procedures that have also helped to make the Senate an institution unresponsive to the public interest need to be eliminated. Ending the filibuster and requiring a majority vote of 51 of elected Senators, by an up or down vote, to approve legislation or nominees proposed by the President would be a modest step toward creating a more responsive and accountable federal government.
Senate Majority Leader Harry Reid and a number of Democratic Senators-elect have proposed to amend the cloture rules of the U.S. Senate to permit filibusters to be shut off by a simple 51 vote majority of members, as opposed the present provision that requires the assent of 60 Senators to even bring legislation to the floor for consideration. Not surprisingly, Senator Reid's proposal has induced apoplexy among GOP legislators, and it has prompted the Republican noise machine to go into overdrive as it tries to persuade ordinary citizens of the benefits that accrue to them from the continuation of political paralysis at the national level.
Recently, in an op ed column in The Boston Globe entitled "Burning Down The Senate," (December 3, 2012).former New Hamsphire U.S. Senator and GOP propagandist John E. Sanunu extolled the existence of the filibuster. Sanunu argued that "Since the chamber's inception, the basic principles at work in the US Senate have been simple. When legislation is brought to the floor, all members are given the chance to speak and offer amendments. When they are done speaking and amending, they vote. The design protects the rights of the minority as well as the rights of individual senators, no matter their party affiliation. All the rules of the Senate are intended to facilitate -- not restrict -- this process."
Sanunu's argument is little less than a specious attempt to defend the indefensible. Filibusters today are not intended to give Senators an opportunity to talk or to offer amendments. Rather, they are solely calculated to prevent legislation from being voted upon without even a requirement that those Senators who wish to filibuster take to the floor and speak until exhausted or incapacitated. Nowadays, the mere threat of a filibuster is sufficient to bring the machinery of government to a standstill.
The concept of a Senate - whose members before the adoption of the Seventeenth Amendment in 1913 were appointed by the state legislatures - was created by the framers of the Constitution as a device that would serve as a check to control the popularly-elected House of Representatives and to ensure that the interests of property owners would be protected. Article 1, ยง 3 of the U.S. Constitution guarantees each state two senators, irrespective of population. This peculiar and patently undemocratic provision was originally included in the Constitution as a compromise to protect the interests of property-owners in the original slave-holding colonies and to persuade them to accept the Constitution.
James Madison defended the idea of a Senate and disguised his personal investment as a slave owner in that "peculiar institution" by addressing his appeal for a new constitution to the broader interests of commerce. As he explained in The Federalist No. 62:"....great injury results from unstable government. The want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements.... What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government?....No government, any more than an individual, will long be respected without possessing a certain portion of order and stability."
Today, the Senate, despite the adoption of the Seventeenth Amendment, is a deeply dysfunctional entity that primarily serves the moneyed interests and their army of lobbyists who benefit from the existing gridlock.
Over the course of past 220 years since the Connecticut Compromise was negotiated at the Constitutional Convention, the composition of the Senate has become increasingly less representative. At present voters in rural America and in the less urbanized areas of the country exercise disproportionate political influence over this country's policies and priorities. For example, the rural and almost uniformly white state of Wyoming, with some 530,000 citizens, has the same number of U.S. Senators as the ethnically and economically diverse state of California which, as of 2009, had a population of about 37,000,000 citizens.
The ability of a small minority of Senators to impose its will and to prevent colleagues from voting on proposed legislation is illustrated by the case of departing Massachusetts Senator Scott Brown who was defeated by Elizabeth Warren. In 2010, in his first vote as a newly-elected Senator, Brown voted to sustain a filibuster that prevented the Senate from even taking a vote on one of President Obama's nominees to the National Labor Relations Board, Craig Becker. Becker, a former lawyer for the AFL-CIO, had been chosen to fill one of the two open seats which, as a matter of policy, only a member of Democratic Party may hold. Becker's nomination was opposed by the U.S. Chamber of Commerce and the National "Right To Work Committee" which claimed that he was too pro-labor.
The Daily Kos (May 7, 2012) reported that, thereafter, Brown supported GOP filibusters that had the backing of at least 50 Senators - measures that failed but would have passed on an up-or-down vote - 40 times out of 53 roll call votes, or 75.5% of the time.
Prior to election of Scott Brown, the 40 Republican Senators represented only a third of the population of this country, which fact meant that Republican voters already had more representation than anyone. With the addition of Scott Brown's vote, Senate Republicans were thereafter able thwart the will of the majority of voters - who elected President Obama - and pander to the entrenched interests of the status-quo.
In Reynolds v. Sims, 377 U.S. 533 (1964) and companion cases in the 1960s, the U.S. Supreme Court endorsed the principle of majority rule based upon the concept of "one person, one vote." As the Court held in Reynolds, "[A]n individual's right to vote for State legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State." The effect the court's decisions was thus to overturn unequal voting districts in state and local elections. As applied to the federal government, this principle of equality had been previously determined by the U.S. Supreme Court, under the rule of Bolling v. Sharpe, 347 U.S.497(1954), to be implicit in the due process clause of the Fifth Amendment to the U.S. Constitution.
Despite the adoption of the 14th Amendment to the United States Constitution, the Supreme Court has declined to extend the principle of basic voter equality to the United States Senate. Its unwillingness is undoubtedly rooted in the doctrine of separation of powers that declares the Senate to be part of co-equal branch of the government; it is perhaps also based on the misplaced theory that the United States, as a federal republic, is constitutionally permitted to treat voters unequally. (Note, however, that the doctrine of judicial abstention did not prevent five unelected justices of the Court from intervening to determine the outcome of the Presidential election in Bush v. Gore, 531 U.S. 98 (2000).) But this reluctance by the Supreme Court to act does not obviate the fact that the U.S. Senate, as an institution, is profoundly anti-democratic and that basing its representation upon states rather than population denies all citizens the equal protection of the of the laws.
The Founders intentionally made it difficult to amend the Constitution by declaring, in Article V of the Constitution, that any proposal to amend the constitution required a vote by 2/3ds of the Senate or the state legislatures, and then had to be approved by three-fourths of legislatures of the fifty states or conventions therein, before any such amendment could become effective. Hence, it is virtually impossible to abolish the Senate as an institution altogether - or at very least to reorganize it by representation based upon broader geographic regions of equal population.
Given this high hurdle, it is essential that policies and procedures that have also helped to make the Senate an institution unresponsive to the public interest need to be eliminated. Ending the filibuster and requiring a majority vote of 51 of elected Senators, by an up or down vote, to approve legislation or nominees proposed by the President would be a modest step toward creating a more responsive and accountable federal government.