The problem with the Senate’s “constitutional role”

On August 12, former Senate Majority Leader Harry Reid published an Op-Ed in the New York Times, arguing in favor of abolishing one of the Senate’s most traditional procedural features: the filibuster. In his view, the 60 vote requirement is “suffocating the will of the American people”. His view is echoed by a number of presidential candidates trying to win the Democratic nomination.

On August 22, Reid’s long-time Senate adversary and current Majority Leader Mitch McConnell responded with his own op-ed, supporting the filibuster on principle as an important part of the Senate’s unique constitutional role. He quoted James Madison in Federalist 62, who characterized the Senate as a chamber that serves as a check on the democratic excesses of the House.

This is all well and fine, but Mr. McConnell’s op-ed cherrypicks the historical record. The Founding Fathers opposed supermajority requirements, except for the special circumstances described in the constitution including treaties and constitutional amendments. James Madison and Alexander Hamilton explicitly rejected supermajority requirements for ordinary legislation. Madison, in spite of his worries about a tyranny of the majority, recognized a majority vote as the desired method to decide the fate of legislation. In Federalist No. 58, speaking about cases that would need more than a majority of a quorum for a decision, he states:   “It would be no longer the majority that would rule: the power would be transferred to the minority.”

It was not only the Founding Fathers’ intention that a majority vote should be sufficient for legislative action; it is also the norm among state legislatures. Supermajority requirements for regular legislation are the exception, not the rule. The lack of filibusters in the states has neither led to tyranny of the majority (although minority parties tend to disagree), nor to a decreased democratic legitimacy of legislative decisions. It would be a stretch to argue that democratic decisions in legislatures that operate by simple majority rule are less legitimate; and even if one comes to that conclusion, an obstructionist minority party empowered by the filibuster may perhaps inflict even higher damage on the Senate’s legitimacy. The Senate’s 60 vote requirement is also an outlier among bicameral legislatures around the world. Other established democracies with strong federal traditions, including Canada, Australia and Germany, require a simple majority vote to pass a bill.

In addition, McConnell’s historical argument is not convincing since the filibuster itself is, as political scientist Sarah Binder explained, the result of a simple, perhaps not well thought-out judgment made in 1805 by Vice President Aaron Burr. He presided over the Senate when the chamber followed his advice to abandon a rule that would cut off debate by a majority vote. Since 1917, Senate rule XXII provides that a bill does not come up for a vote without a successful cloture vote (then two thirds, now three fifths). However, the Senate continued to work mostly on a simple majority basis, without de facto veto power for the minority party.

McConnell’s prediction that “Democrats who want to change Senate rules for temporary political gain will rue the day, as they have before” might be proven right the next time Republicans are in unified control. But while it is certainly true that “democracy isn’t simply about majority rule”, the American people, if they entrust one party with unified control of government, expect results. That the Republican majorities in Washington were unable to follow through on many of their priorities had partly to do with the filibuster, but more with Republicans’ slim Senate majority, their limited legislative agenda, and the present state of the GOP.

McConnell is right that America doesn’t need a second House of Representatives. But it also doesn’t need more legislative gridlock. For much of its history, the Senate operated by majority rule. An end to the cloture rule in its current form (either by bipartisan reform or by unilateral partisan action) could potentially restore the Senate’s former approach. It was Senator Henry Cabot Lodge Sr. who complained after mere days of inaction in 1893: “There is another right more sacred in a legislative body than the right of debate, and that is the right to vote.”