Restoring Democracy

Author: Gary Hart

Few principles are as central to democracy and the ideals of the American Republic as majority rule. Though James Madison and his colleagues in The Federalist acknowledged the necessity of protecting the rights of minorities, the course of our nation was to be determined by the will of the majority. No other system consistent with democracy would prove workable.

There is nothing in the United States Constitution that permits a minority to frustrate the will of the majority.

Yet in the early 21st century, the will of the majority of Americans, expressed on a daily basis by our elected representatives in Congress, is consistently thwarted by a minority in the United States Senate. This minority resorts to the Senate rule requiring a three-fifths vote—60 vote–to close (invoke cloture on) debate.

Article One, Section five, of the U.S. Constitution provides that “Each house [of Congress] may determine the rules of its proceedings….” Based upon Thomas Jefferson’s notion that the Senate was to be the saucer in which controversies cooled, Senators have, from the beginning, been at liberty to express their views at such length as they wish. (Jefferson, it should be noted, was the author of the Manual of Parliamentary Procedures for the Use of the Senate of the United States in 1801.) But the Senate has always recognized that even the principle of unlimited speech has its conditions based upon comity and common sense.

Yet today the Senate conducts its business, or not, under the constant threat of a filibuster. Important legislative measures having to do with the vital interests of our nation and the rights of our citizens will not even be introduced if a minority of Senate members refuse to permit them to be considered. Thus, a rule to protect debate is systematically used to prevent debate. Even worse, secret “holds” by individual Senators prevent confirmation of federal judges and administration officials.

Though the Senate filibuster rose to prominence during civil rights debates in the 1950s and 60s, it ran its course and the majority prevailed. Today, it is commonplace and a matter of course for such a lock-step minority systematically to prevent consideration of the clear majority will.

The Constitution prevails over congressional rules. Can it be seriously argued that the Senate could adopt a rule that individual Senators could only vote on every other bill or that they could only vote on trade issues, for example, in the fourth year of their term?

Rules of the Senate cannot trump the obvious intention of the Founding Fathers that legislation passed by majorities of both houses, except for the explicit exceptions for ratification of treaties, becomes the law of the land. This is not a partisan question; though today the filibuster, real or threatened, dominates virtually every significant issue confronting the Senate and our nation. The law of political payback will ensure that today’s Senate majority, once it becomes the minority, will exact its revenge on today’s opposition minority party.

Examples of recent abuse of the cloture rule include a 53 to 36 Senate vote to end tax cuts for the wealthy and a 57 to 40 vote to end “don’t ask, don’t tell” regarding the service of gays in the military. Regardless, both measures failed under the threat of a filibuster. These and other examples are clear violations of the fundamental principle of majority rule.

This is no way to govern a great democracy, not to say also a democracy seeking to democratize other nations.

The abuse of the cloture rule ending debate is a violation of fundamental Constitutional principles. Should a judicial test of this notion occur, it will at the least prove which of the current Supreme Court Justices are, or are not, true “originalists”. Resolutions have been introduced in the Senate to alter the cloture rule and permit majority rule, while continuing to protect the rights of individual Senators.

In the interest of the nation and the U.S. Constitution, the Senate must once again become a democratic institution.

15 Responses to “Restoring Democracy”

  1. Bill Pruden Says:

    Not surprisingly, today’s entry represents another thoughtful and thought provoking contribution from Senator Hart. However, as a high school history teacher with a passion for accuracy about details even in the wake of the modern “facts don’t matter, you can always look it up” movement, I must note that it has always been my understanding–one confirmed on the U.S. Senate website–that the idea of the Senate as the saucer which would cool the passions of the House was offered not by Jefferson, but by George Washington in an explanation to Jefferson, who of course was not in attendance at the Constitutional Convention but was representing U.S. interests in France. A quibble to be sure, especially given Senator Hart’s insightful commentary, but I felt it important to offer the clarification.

  2. Gary Hart Says:

    I am indebted to Mr. Pruden for his historical correction and apologize for putting Washington’s words in Jefferson’s mouth, so to speak.

  3. Pat Boice Says:

    Senator Hart – please send your entry of today to the New York Times or any other venue that will give it more readership. It is vital that our citizenry understands what is going on! I will forward this to my friends!

  4. Debbie Lackowitz Says:

    Quite insightful. Learned a lot from this post. Indeed it does seem as if the ‘minority’ is thwarting the majority. And they ARE. But what happens Jan 5th, when that majority becomes minority in the House? Great historic legislation was passed through the House under the Leadership of Nancy Pelosi. To then ‘die’ on passage to the Senate. She now becomes Minority Leader. What legislation will be passed under the gavel held by John ‘weeping’ Boehner? And what about the START treaty? I know, 3/5 (67 votes) are required. They have had this before them for six months. It’s NOT like they haven’t been able to look it over. Still no action. Might not pass. As I understand it, at the convening of each Congress (every two years) rules can be discussed and adjusted and changed. That includes the super majority 60 vote AND the filibuster. VP Biden should be right there as President of the Senate on Jan 5th in the Senate as it convenes. The super majority 60 vote rule and filibuster were never meant to be used like this. And it CAN be changed. I believe that most Americans want the Senate to become a working chamber again. 50 + 1. Majority Rules. Except in extreme cases and for treaties. But even that. The START treaty is being held up only because a Democratic Administration brokered it. Just like the Dream Act. At least DADT passed. Grateful for that. This nation has very serious issues that MUST be dealt with. And they’re not going to be unless the rules are changed on Jan 5th.

  5. Neal Taslitz, Esq. Says:

    I believe that the fillibuster rule can be altered as other Senate parlimentary rules can be on the first day the new Senate convenes in 2011.

    I am not sure of the votes needed to do so, or whether it is a matter that is subject to the fillibuster itself. If not, I would hope that that the Democrats and Independents change fillibuster rule, or perhaps place a cap on the number of fillibusters permitted each year by the minority party.

    Unless the rule is changed next month, the next two years in the Senate will prove to be worse than the last two years, and any post 2012 “revenge” by Democrats will not help resolve the situation.

    The fillibuster rule must be changed in January 2011. There are far too many important matters to resolve in the next two years that need to be voted on to keep America strong.

    Repeated misuse of fillibusters only deepen the politcal quaqmire the majority created during the past 24 months by using them as a weapon to weaken and frustrate not just President Obama but the majority of middle-class Americans.

  6. Jeffrey Abelson Says:

    This has long gnawed at me as well. But what I’ve never understood, and perhaps you can elaborate on given your Senate experience, is why does the majority — and the media — and American people — settle for a “threat” of filibuster. Why not demand (via statute or via media watchdogs) that those who choose to use the filibuster must actually, you know, do so? Get up there and talk till you can’t talk anymore. No one can talk about substance for very long, so they soon turn to gibberish, or reading something out of a book or what not. Show that mindless waste of time and obvious diversion from doing the nation’s business to the American people, and perhaps people who abuse this tool will be sufficiently shamed that it’s no longer a viable monkey wrench.

  7. Tom Gee Says:

    Mr. Abelson’s proposal warrants serious attention. Next year, whenever a Senator threatens filibuster, let them go at it. It won’t take long for the public to figure out it’s a misuse of power, just as when Speaker Gingrich threatened to shut down the government.

  8. Christine Gallo Says:

    I am wondering just how this vote to change this rule would work…since at this time is seems to take a fillibuster proof majority of 60, will 2/3 of the Senate have to approve the change? How realistic is it to think that will occur? If not, will the American people then have to pressure their Senators to vote for this measure under the threat of being voted out of office? What other choices are there?

  9. Si Says:

    Here people are trying to restore democracy, make sure it gets to the press:

  10. Gary Hart Says:

    To Pat Boice, a very similar version of this post, co-authored by former Senator Chuck Hagel (R.Neb.) was submitted to the New York Times…and rejected. It is my understanding that version appears on the Time magazine online edition this week. To Mr. Abelson, I totally agree with the argument contained in your question. Those threatening to filibuster should be required to perform. The majority leadership I’m sure would argue that this would completely prevent passage of any legislation. But at least the American people would know whom to hold to account.

  11. Jeffrey Abelson Says:

    To Christine and all concerned. Senators Jeff Merkey and Tom Udall are planning to address this on day one of the new Congress, when a Constitutional option allows a simple majority of the Senate to act to reform the filibuster rules.!)

  12. sbgypsy Says:

    Christine: Takes only 51 votes (including the VP) to change it on the first day of the new congress.

    ” The law of political payback will ensure that today’s Senate majority, once it becomes the minority, will exact its revenge on today’s opposition minority party.”

    Well – not if it’s changed, and then what will the minority do? Seems to me the Republicans are doing it on purpose – it’s a win win – they can max out the fillibuster now, then when they have the majority they don’t have to deal with the same behavior.

  13. Vincent S. Says:

    You say: “this is no way to govern a great democracy.” But we are not a democracy, we are a Republic.

    Do not underestimate the anti-Democratic nature of the Senate.

    As of the last census, 52 Senators represent 19.03% of the nation’s population.

    If (in a bizarre circumstance for sure, but it reinforces the point) the Senatorial representatives of just 19% of the entire population were against something, it cannot become a law in this country. The will of the other 81% would be thwarted.

    I think people forget the structure of our society. And it is not only the Senate that is anti-democratic. Wyoming’s 544,000 good people have 1 Representative in the House. How many Representatives do the 974,000 good people of Montana have in the House? 1. The one man/one vote rule is not in our Constitution either; it is made up from whole cloth. We are not a democracy.

    Let us also not forget the electoral college, and the fact that the person elected President does not have to have won the most popular votes.

    And so, I think we should remember the name of the country: The United States of America. It is a Republic, with many checks on power, with many anti-democratic processes and aspects to it.

    The filibuster rule is an internal rule of the Senate and one anti-democratic example of many in our Republic.

  14. Neal Taslitz, Esq. Says:

    Please delete my second comment submitted above on December 21, at 5:10 pm., and if possible replace it with the following comment. Merry Christmas. NT


    Ending, or limiting the number of fillibusters used each year or each session would be an effective way to prevent American democracy from sinking further into the cesspool of revenge and stagnation.

    Failure to end of restrict the fillibuster in January, will likely morph into a dangerous level of polarization in D.C. as well as in local and state governments over the next two years.

    The use of political revenge and lack respect for our leaders and government will discourage decent civilized Americans from becoming public servants and seriously weaken our democracy by empowering the radicals and lunatics who seek to destroy it.

    One only need to watch the last 15 minutes of the film Lawrence of Arabia to understand the kind of “tribal” revenge and lack of progress that will result from the continued abuse of the fillibuster.

  15. Jim Engelking Says:

    Merry Christmas to all. I would suggest that everyone “adopt” a Senator, and call/write/FAX the “adoptee” asking that the Senator work with Sens Harkin and Tom Udall and Merkley and Bennet, who had suggested a package of five reforms in January, to change the rules on Jan 5. Don’t stop communicating until you get an answer of Yes or No. Today’s paper states a few changes are being suggested, among some Democrats, and even though they don’t go far enough to reform secret holds and filibusters, that the Republicans will still oppose them. The American people want Congressional action, and it’s clear from the Lame Duck that it is possible for Senators, even under these bad rules, to cooperate when motivated. Let’s make the 112th Congress one of action in the national interest.

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