Concerning The Senate

Complaints are everywhere heard from our most considerate and virtuous citizens...that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.

 - James Madison, Federalist 10

This has been bugging me for a long time for a variety of reasons: people have been dissing the Senate because it's not behaving as "it should" during the healthcare reform debate. 

Look, I'll criticize the President on strategy and policy, I'll lambast the Speaker of the House and Senate Majority Leader for being spineless and ineffective, and I'll gladly debate the construction of the Constitution and theories of government with anybody, a beer or twelve or not.  And I admit once again that it's my favorite component of our Federal system, but damn, the Senate as designed is not the problem here, any more than a particular government officer or a particular argument or tactic they use.

We should just address the reality of the situation, no matter how anti-democratic you think the chamber is, how unfair it is that the minority party can gum up the works, how the Constitution should be amended because the small states shouldn't have as much power as they do, blahblahblah.  Fact is that the Senate is there, it has a certain construction, and whether we like it or not, it's part of the sausage-making process. 

And don't talk to me about the merits of the Connecticut Compromise.  That was then, this is now, we have a Senate, get over it.

Maybe someday we'll change the fundamental character of that body, but let's be practical.  Good luck with an amendment process that requires 2/3 of the Senate or state Legislatures to go along with it, and ratifcation by 3/4 of the States.  And let's not forget Article V of the Constitution: no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.  That's essentially a veto, amendment process notwithstanding. 

Sadly, I see a lot of the blogosphere once again diverting their energies to not only kibitzing on stupid shit, but doing it from a position of ignorance.  Exhibits A and B, our favorite mushy middlers Kevin Drum and Big Media Matt:

Drum: The fact that certain types of legislation (treaties, constitutional amendments, veto overrides, etc.) specifically require supermajority votes is evidence that the framers assumed that ordinary legislation should be passed by majority vote. Assumed it so strongly, in fact, that they never seriously considered the possibility that they had to spell it out.

...

Yglesias: [I]f Joe Biden, Harry Reid, and 49 other Senators want to change the filibuster rule or deem a health plan eligible for reconciliation or whatever else they like nobody can stop them.

Kevin needs to brush up on the construction of the Constitution.  Yeah, the Framers might have assumed majority vote would carry the day in most circumstances, but what the document they created does is explicitly indicate things they think are important, whether it be powers or requirements or limitations.  It's a fairly glaring omission to not say, as some state constitutions do, that majority vote rules the day. 

It's even more noteworthy that each chamber was given specific demesne over their own rules. 

So House rules call for "yeas and nays" in many situations and then notes that 2/3 is required for suspending the rules and such.  Being the rabble, the proportional representative of the People, it generally does have an inherent bent toward the majority's prerogative.

And Senate rules, given the chamber is more divorced from the mob by design, also specify supermajorities for certain actions, including changing the rules and shutting down debate.  Filibusters might seem unfair, but what of the tyranny of the majority, no matter how righteous it might be?  Perhaps it's good to have a firewall in the form of parliamentary mechanisms that stop the rush to legislation, causing Congress a moment's pause to hear the minorities concerns ("legitimate" or "political"), fostering more consensus overall.  Would that things had been slower when passing USA PATRIOT or the AUMF.

Turns out the House had filibusters until they became too unwieldy in the larger chamber, and the Senate had no way to lock them down until 1917.  Decades later the 2/3 requirement was reduced to 3/5, which of course makes it a bit easier for the majority to assert itself when the minority tries to block legislation. 

Nowadays the "60 vote requirement" to pass things, as misreported dutifully by the media, isn't a rule, but comes in the form of unanimous consent agreements.  In other words, "majority rule" has been suspended without objection from any Senator--they all voluntarily waive their rights and privileges to do business, which would otherwise be generally rather cumbersome under the normal rules.

Matt also needs to read more before he makes pronouncements about what the Majority can do to these regulations.  Rule XXII says rule changes require "two-thirds of the Senators present and voting" (note it doesn't require all Senators "duly chosen and sworn"). 

Could the Dems just show up some time and "forget" to tell the GOP to cram a new rule down their throats?  Nope: Rule V requires a day's notice, in writing, with the specific rule changes spelled out.

No rule change is going to happen any time soon, and the UC agreements are going to be with us as well because even Bernie Sanders apparently isn't going to fight them.  Ironically, I think, the latter used to appear toward the end of the debate process and now are often pre-negotiated "contracts" to help expedite matters in the traditionally slow and deliberative Senate--without them, the GOP could throw an even larger monkey wrench in the machine.

So let's put to bed the idea of the Senate rules changing in our favor.  They won't, and while Bernie or Russ or somebody else who wants a good HCR bill could stop playing ball and essentially shut down the Senate, that's probably counterproductive rather than a good protest or way to move our agenda forward.

Blame the Iroquois, blame Hamilton, blame Jefferson, blame Reid, blame Obama.  None of that helps us foster the consensus required.

So right now let's focus on our own part in a solution to the current disaster of a healthcare system we have in place, work the legislative process as it exists, and remember we aren't in college any more sitting around in our senior quad during a bull session fueled by alcohol, boredom and a lack of responsibility.

ntodd