[Nice article, and yet in my case led to even more despair about fixing it, because it made me actually go back and read the revised Rule 22, whose awfulness is much more fundamentally ingrained then I'd thought.]
http://www.nytimes.com/2010/01/11/opinion/11geoghegan.html
The New York Times
January 11, 2010
Op-Ed Contributor
Mr. Smith Rewrites the Constitution
By THOMAS GEOGHEGAN
Chicago
ABOUT the Senate, a college professor of mine used to say, "One day,
the Supreme Court will declare it unconstitutional." He was joking, I
think.
But the Senate, as it now operates, really has become unconstitutional:
as we saw during the recent health care debacle, a 60-vote majority is
required to overcome a filibuster and pass any contested bill. The
founders, though, were dead set against supermajorities as a general
rule, and the ever-present filibuster threat has made the Senate a more
extreme check on the popular will than they ever intended.
This change to the Constitution was not the result of, say, a formal
amendment, but a procedural rule adopted in 1975: a revision of Senate
Rule 22, which was the old cloture rule. Before 1975, it took
two-thirds of the Senate to end a filibuster, but it was the "Mr. Smith
Goes to Washington" filibuster: if senators wanted to stop a vote, they
had to bring in the cots and the coffee and read from Grandma's recipe
for chicken soup until, unshaven, they keeled over from their own
rhetorical exhaust.
For the record, nothing like Senate Rule 22 appears in the
Constitution, nor was there unlimited debate until Vice President Aaron
Burr presided over the Senate in the early 180os. In 1917, after a
century of chaos, the Senate put in the old Rule 22 to stop unlimited
filibusters. Because it was about stopping real, often distressing,
floor debate, one might have been able to defend that rule under
Article I, Section 5 of the Constitution, which says, "Each house may
determine the rule of its proceedings."
As revised in 1975, Senate Rule 22 seemed to be an improvement: it
required 60 senators, not 67, to stop floor debate. But there also came
a significant change in de facto Senate practice: to maintain a
filibuster, senators no longer had to keep talking. Nowadays, they
don't even have to start; they just say they will, and that's enough.
Senators need not be on the floor at all. They can be at home watching
Jimmy Stewart on cable. Senate Rule 22 now exists to cut off what are
ghost filibusters, disembodied debates.
As a result, the supermajority vote no longer deserves any protection
under Article I, Section 5 -- if it ever did at all. It is instead a
revision of Article I itself: not used to cut off debate, but to decide
in effect whether to enact a law. The filibuster votes, which once
occurred perhaps seven or eight times a whole Congressional session,
now happen more than 100 times a term. But this routine use of
supermajority voting is, at worst, unconstitutional and, at best, at
odds with the founders' intent.
Here's why. First, the Constitution explicitly requires supermajorities
only in a few special cases: ratifying treaties and constitutional
amendments, overriding presidential vetoes, expelling members and for
impeachments. With so many lawyers among them, the founders knew and
operated under the maxim "expressio unius est exclusio alterius" -- the
express mention of one thing excludes all others. But one need not
leave it at a maxim. In the Federalist Papers, every time Alexander
Hamilton or John Jay defends a particular supermajority rule, he does
so at length and with an obvious sense of guilt over his departure from
majority rule.
Second, Article I, Section 3, expressly says that the vice president as
the presiding officer of the Senate should cast the deciding vote when
senators are "equally divided." The procedural filibuster does an end
run around this constitutional requirement, which presumed that on the
truly contested bills there would be ties. With supermajority voting,
the Senate is never "equally divided" on the big, contested issues of
our day, so that it is a rogue senator, and not the vice president, who
casts the deciding vote.
The procedural filibuster effectively disenfranchises the vice
president, eliminating as it does one of the office's only two
constitutional functions. Yet the founders very consciously intended
for the vice president, as part of the checks and balances system, to
play this tie-breaking role -- that is why Federalist No. 68 so
specifically argued against a sitting member of the Senate being the
presiding officer in place of the vice president.
Third, Article I pointedly mandates at least one rule of proceeding,
namely, that a majority of senators (and House members, for that
matter) will constitute a quorum. Article I, Section 5 states in part
that "a majority of each shall constitute a majority to do business."
Of course, in requiring a simple majority for a quorum, the founders
were concerned about no-shows for a host of reasons -- not least of all
because the first legislators had to travel great distances by
stagecoach.
But the bigger reason for the rule was to keep a minority from walking
out and thereby blocking a majority vote. In Federalist No. 75,
Hamilton dismissed a supermajority rule for a quorum thus: "All
provisions which require more than a majority of any body to its
resolutions have a direct tendency to embarrass the operations of the
government and an indirect one to subject the sense of the majority to
that of the minority."
It would be illogical for the Constitution to preclude a supermajority
rule with respect to a quorum while allowing it on an ad hoc and more
convenient basis any time a minority wanted to block a vote. Yet that
is essentially what Senate Rule 22 achieves on any bill that used to
require a majority vote.
So on the health care bill, as on so many other things, we now have to
take what a minority of an inherently unrepresentative body will give
us. Forty-one senators from our 21 smallest states -- just over 10
percent of our population -- can block bills dealing not just with
health care but with global warming and hazards that threaten the whole
planet. Individual senators now use the filibuster, or the threat of
it, as a kind of personal veto, and that power seems to have warped
their behavior, encouraging grandstanding and worse.
What can be done about the procedural filibuster? There are several
promising lines of attack.
If the House passed a resolution condemning the use of the procedural
filibuster, it might begin to strip the supermajority of its spurious
legitimacy. It's the House that has been the great victim of the
filibuster, and at least with such a resolution that chamber could
express the grievance of the people as a whole against this usurpation
by a minority in the Senate.
The president of the Senate, the vice president himself, could issue an
opinion from the chair that the filibuster is unconstitutional. Our
first vice presidents, John Adams and Thomas Jefferson, felt a serious
obligation to resolve the ties and tangles of an evenly divided Senate,
and they would not have shrunk from such a challenge.
We citizens could also demand that our parties stop financially
supporting senators who are committed to the filibuster, and we
ourselves could deprive them of fund-raising dollars.
And we needn't rule out the possibility of a Supreme Court case.
Surely, the court would not allow the Senate to ignore either the
obvious intent of the Constitution.
Whether any such approach works, the founders would have expected us to
do something about this unconstitutional filibuster. In Federalist No.
75, Hamilton denounced the use of supermajority rule in these prophetic
words: "The history of every political establishment in which this
principle has prevailed is a history of impotence, perplexity and
disorder." That is a suitable epitaph for what has happened to the
Senate.
Thomas Geoghegan, a lawyer, is the author of See You in Court: How the
Right Made America a Lawsuit Nation.