Many pundits have written that the action by Senate Democrats to change the rules and limit filibusters was necessary. Now, a simple majority — rather than 60 votes — is all that’s necessary to proceed on judicial and executive branch nominees.
At this point, however, it’s prudent to believe similar rule relaxations for legislation and Supreme Court nominees (which are exempt from the rule change), aren’t far off. It’s a fundamental change to our legislative process that few noticed.
President Obama, the immediate beneficiary of the change, insisted it was needed to address “an unprecedented pattern of obstruction in Congress.” That’s ironic considering he caused such obstruction as a senator during the Bush presidency, lamenting “the partisan atmosphere in Washington will be poisoned to the point where no one will be able to agree on anything,” if the same rule change were made.
Conservatives were right to oppose the change now and in 2005, when they considered it to stop perpetual filibusters of Bush judicial nominees.
To understand the scope of potential damage wrought by Senate Majority Leader Harry Reid and Obama, it is important to understand the original intent and design of the Senate.
James Madison, principal author of the Constitution, also wrote some of the Federalist Papers meant to explain and promote it during the ratification process. In Federalist 62, Madison explained that the Senate is a body meant to avoid being “seduced by factious leaders into intemperate and pernicious resolutions.”
The Constitution originally called for state legislatures to select senators. Madison argued state governments needed this to “secure the authority of the former [states],” and “form a convenient link between the two systems.” Madison further explained the Senate “doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy.”
Madison, in short, envisioned the Senate as a check against runaway government — a calming, prudent body less prone to haphazard, knee-jerk reactions.
Consider what has happened since Madison’s era. The filibuster, created by rules adopted by the first Senate body, was used to disallow narrow majorities from passing potentially harmful legislation. President Woodrow Wilson, seeking to enhance executive power, pushed for the creation of cloture — a way to end filibusters if a certain amount of senators voted to close debate (it was 60 votes at the time of the recent change). The 17th Amendment stripped away the selection of senators by state legislatures, meaning both chambers of Congress directly represent the people.
Why is that history lesson important?
This rule change is just the latest in a series of changes to strip the Senate’s ability to protect the rights of the minority and provide a measure of necessary contrition when apparent crises lead to hurried legislative actions. And that has not been given the national discussion it deserves.
Instead, attention has returned to the botched implementation of Obamacare and Iran.
Ironically, Obamacare’s implosion arguably could have been prevented if the Senate functioned the way it was originally designed.
The lawsuit brought against Obamacare’s individual mandate came from duly-elected state officials. Would state legislatures have selected senators that would have voted differently? Would state legislatures select senators who would impose on them a 2,000-plus page bill that has — so far — proven unworkable?
According to a 2011 citizenship survey conducted by Newsweek, 70 percent of the population doesn’t even know that the Constitution is the law of the land, so we shouldn’t be surprised that nobody has considered the Federalist Papers’ interpretation of its balance of power
When ignorance is the baseline, we can expect even a significant change to the Senate’s rules will fail to receive the attention it deserves.
Fittingly, it was Madison who also said: “Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.”
But until then, don’t expect a hue and cry over Harry Reid’s power grab.