❄  PLAIN TALK [I]: OBSTRUCT THE REPUBLIC

❄ This post, and other ‘PLAIN TALK’ posts on this blog, describe in plain language the current Republican Party aims and methods, which I consider a perverse exercise in political design. ❄

Consider a call to END PARALYSIS BY A SUPERMINORITY. This note returns to a subject raised earlier [Note 1], but takes a different tack than those developed in ‘Are You an Obstructionist?’  The earlier note is more elegant. This note is blunt, but it also addresses conventional arguments for the status quo.

The US Senate operates under rules [Note 2] that enable ’two-fifths plus one’ to block legislation (in that to end debate requires the votes of three-fifths of the Senators). [These provisions are the ghostly remnants of racist filibuster against civil rights in the Senate of olde.] The problem is that one Party has chosen to use Rule XXII to give it a veto on Senate action … and so block any legislation (including those to tax and appropriate funds) that the majority judges necessary for governance. A number of US states require a ‘supermajority’ of 3/5 or 2/3 to pass some legislation (in the state legislature or by referendum), such as budgets and tax bills. This note speaks only to the US Senate practice, as state constitutions and rules are various.

The Question

What’’s wrong with this? If it’s bad, how can it be fixed?

Approaches

What’’s wrong is that requiring a supermajority, when more than half but not three-fifths favor a bill, effectively disenfranchises those whose votes elected that majority of the Senate. It is not far-fetched to call it vote theft.

Defenders of this rule offer two arguments. First, that the rule ensures that a majority does not trample the minority. Second, that in any case the Constitution (Article I Section 5) stipulates that “Each House may determine the Rules of its Proceedings … ”.

The issue of ‘cloture’ confronts every deliberative body. When is enough talk enough? Is there some argument, not yet heard, which would sway the body if only a member were given time enough to speak it? And how can the body know it would not be swayed if it silences that member?

But ‘trampling’ conveys another fear: that the substance of a bill, if enacted, could deprive the minority of rights or precious policies … and that if as many as two-fifths plus one judge the bill so onerous, or even dangerous, then that bill should not pass.

In a voluntary society—say, the Different Drummers’ Club—mutual respect, a readiness to listen but also a readiness to accept practices that make for decision, is sufficient. If it were not, members would leave, as they are always free to do. And the Drummers’’ decisions are of modest consequence. But the US Senate must judge matters of enormous consequence, war and equity, justice and regulation, initiative and restraint, and its members are expected to serve their terms. Could reasonable men and women find a way to ensure that any Senator’’s argument could be made and be available? Of course.

Now, what about substance? What of ‘the onerous, the dangerous’? The Constitution builds in two protections against bad bills: requiring approval of both House and Senate, and requiring Presidential approval. Those who insist on the Senate’’s requirement of a supermajority must believe that House, Senate, and President would agree to a bill so bad, so onerous and even dangerous, that it must be stopped. And it is not impossible to imagine Congressional majorities and a President who would commit to bad policy and bad practice. Of course, as long as there is some vestige of an electoral system the customary reply is that the public will, at the next election, have the option of throwing the rascals out. But in these early 2000s it has become clear that large numbers among the US public can’’t spot a rapscallion when he, or she, is in plain sight.

The argument is often made that we may rail against the opposition’’s superminority today, but on a later day, after an election that transformed us into a minority, we would prize the ability to prevent a new majority from enacting its mad schemes. Shouldn’’t we think more kindly of the Senate’’s requirement of 60%?

No. The requirement of a supermajority introduces an asymmetry. If Party A has a reliable 60% it can pass what it will—and if it has the cooperation of the House and the White House that bill becomes law. Thereafter, Party B can reverse the law, only if it can muster a vote of 60% in the Senate, and a majority in the House, and a Presidential signature, at the same time. Party A has put a ‘lock’ on the terms of that act, which may be modified in the future in the necessary bargaining between Parties A and B but which will resist reversal if Party A remains obstinate.

Of course, the main objection to a Senate superminority is that it makes for paralysis. A majority in the Senate cannot act unless it can muster 60%, which an obstinate Opposition will deny if it can.

Design Proposal

The post “Are You An Obstructionist?” offers one approach: to call for personal pledges not to obstruct a majority.

A very different approach would be to wrench the supermajority requirement out of the rules: let a majority decide, unless the Constitution requires more. [Note 3] Apply it to getting a vote, and the vote itself, on bills, and on appointments.

It is interesting, by the way, that the drafters of the Constitution were well aware that there might be some matters for which a supermajority was desirable. Article 1 Section 5 not only refers to rules, but stipulates that a 2/3 vote is required for one particular action:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”

It does not say that the concurrence of two thirds is required to end debate, and it does not say that the Rules may not require two thirds.

Drafting Problem

I leave it to the Reader to wrestle with drafting suitable rules. Would you really want a ‘mere’ majority to be able to end debate? Wouldn’’t these two rules (simple majority to act, and to force a matter onto the agenda) require guarantees that the text of a bill be available for some set number of days in advance of consideration and vote? How is a minority’’s role to be honored and respected? Are there other issues raised by such a blunt way of addressing the filibuster?


NOTES

[Note 1]:   See Are You an Obstructionist? Post A23. 7 August 2010.

[Note 2]:   Rule XXII, Precedence of Motions, §2. http://rules.senate.gov/public/index.cfm?p=RulesOfSenateHome.

[Note 3]:  The Constitution requires a two-thirds majority, in some cases of both Houses separately, in eight matters: expulsion of a member, veto override, Senatorial treaty ‘advice and consent’, initiating a Constitutional amendment, overriding an Amendment 14 §3 disqualification of having violated an oath to the Constitution, conviction by Senate in trial of impeachment, and to overcome Presidential insistence that he or she is not unable to perform the office. None of these is an ‘ordinary’ legislative matter.

[Political Design 2011.06.18. Minor revisions 2011.06.25. Post A25. http://leahy.senate.gov/press/200902/020909a.html Archive through April 2010 at http://www.learnworld.com/blog/design.html]


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