The 100 percent Senate solution

Richard Lorenc Cofounder, Liberty Markets LLC
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Slightly over 200 years before the Declaration of Independence was written, a unique experiment in government was undertaken in Central Europe. The Polish-Lithuanian Republic (1573-1791) not only had an elected king, it had a strong set of institutions that made it one of the most prosperous countries in Western history.

The republic was renowned for its economic prosperity and representative monarchy. It was also a relatively free place, where Catholics, Orthodox Christians, Protestants, Jews, and Muslims traded peaceably and no one could be imprisoned or deprived of property without a proper ruling under the law.

The separation of powers was strong, and the representatives of the aristocracy held most authority. In a paper for the Independent Review, Dalibor Roháč wrote that the Sejm (Senate) often stopped war-happy kings by using the power of the purse.

Although the Polish-Lithuanian Republic was no utopia, Americans who want to see our republic survive ought to consider one of the Polish-Lithuanian parliament’s main procedural rules: liberum veto, which required the Sejm’s unanimous approval for every piece of legislation to become law. If even a single member opposed a bill, it would be tabled and no majority could salvage it.

The most important effect of this rule was that a piece of legislation would lack the force of law unless it was determined to be absolutely necessary. Furthermore, it prevented the passage of bad laws. Given the country’s diverse religious population, the liberum veto stopped particular religious groups from imposing or suffering legal discrimination common in medieval Europe.

Owing exclusively to the republic’s place in history, the rule was also one of the reasons for its eventual downfall. German and Russian interlopers would bribe one Polish noble family to get their envoys to vote against the interests of the nation. Given the difficulties associated with disseminating information in a timely fashion during the pre-industrial era, neither peasants nor nobles nor merchants could hold bribed families accountable.

However, centuries later, with the strong foundations of our constitutional republic and advances in the means through which the public participates in government, we should consider how the liberum veto might work in the U.S. Senate.

Imagine a situation in which every senator would be required to approve a tax hike or a declaration of war. Consider last year’s health insurance reform debate and how the political calculus would have changed from requiring 40 senators to block a vote to needing only a single dissenter.

Implementing the liberum veto would truly realize the U.S. Senate’s reputation as the world’s greatest deliberative body.

The U.S. Senate has something akin to the liberum veto today, although it lacks teeth. Procedural rules are often dispensed through a motion for unanimous consent, which allows a senator to expedite the normal legislative process. If no other senator objects to the request, the senator’s plan is fast-tracked.

But this new rule would be aimed squarely at slowing down a legislative process that has become far too speedy and inconsiderate. Unlike the filibuster, it would actually prevent a bill’s passage rather than simply delay a vote. But like the way juries issue verdicts of guilt unanimously, the liberum veto would restrain action unless absolutely necessary.

One would trust that 100 sophisticated senators could emulate citizen-jurors to reach unanimous consensus on truly needed legislation.

The liberum veto would also benefit the cause of government transparency. A senator today might vote against a bill whose main purpose he actually finds unobjectionable. This is usually because, buried inside, there is a provision or earmark of which that senator disapproves.

The liberum veto would compel legislation to be clear in its language.

Beyond having clarity, good public policy is universal rather than specific. It applies equally to everyone and lacks loopholes and perks for favored individuals, corporations, or classes. Requiring unanimity would prevent special interests from hijacking the legislative process and ensure new laws afford equal benefits to and impose equal burdens on everyone.

Of course there are some needed reforms of entitlement programs such as Social Security that would never garner unanimity. Therefore, the only exception to the rule would be a provision allowing defunding and tax-decrease bills to pass the Senate with a super-majority of two-thirds. However, 100 percent of senators would have to approve every new appropriation.

Although majority rule would continue to suffice to pass bills in the U.S. House, the new Senate rule would also necessitate practical changes there to accommodate the Senate’s new political reality. The effect would be higher levels of consensus-building everywhere.

The liberum veto would ensure an intense political bargaining process that yields legislation deemed more beneficial than harmful to all.

Some may argue the liberum veto is either unnecessary or impossible to implement. But, paradoxically, it could be made a parliamentary rule today by a two-thirds majority in the Senate. There is no clause in the U.S. Constitution that requires legislation to be passed by majority rule. The Constitution only lays out two congressional voting rules: 1) that vice presidents can break ties in the Senate; and 2) that two-thirds of both houses are required to overturn a presidential veto. And because Senate rules can be changed on the first day of every new Congress, the liberum veto could be tested and reevaluated if it prevented essential acts from being undertaken.

Regarding necessity, politicians’ continued deficit spending and ballooning national debt demand a serious change to the status quo. There are simply not a majority of legislators in Washington, D.C. who are willing to vote in the nation’s long-term interest, preferring instead to support the state.

Outside of the liberum veto, options for curtailing legislation-happy politicians are politically risky. Short of the unlikely repeal of the Seventeenth Amendment, a new constitutional amendment could allow state legislatures to recall senators elected previously by popular vote. U.S. senators, therefore, would again have greater incentives to represent the situation in which their state finds itself rather than the interests of an ambitious federal government.

Another politically risky option would be a constitutional amendment giving a certain majority of states the authority to veto federal legislation that their legislatures oppose. This would give the states some say in federal legislation that imposes direct costs on their citizens and supplants local priorities. But, like the other amendment options, a prospective states-veto amendment would be extremely difficult to ratify.

Perhaps republics with strong limits on government power are fated to last only around 200 years. That may be the amount of time needed to game the system to bestow concentrated benefits on the many at the expense of a dispersed few.

Or maybe history is written by our choices and actions, and we can choose to take serious steps now to address the urgent crises we face as a nation.

Richard Lorenc is cofounder of Liberty Markets LLC, a Chicago-based firm that connects donors with entrepreneurial, free market nonprofits, and is chairman of the Chicago chapter of America’s Future Foundation.