Restoring Democracy to the U.S. Senate

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The U.S. Senate Chamber

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 votes — 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; 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 the 53 to 36 Senate vote to end tax cuts for the wealthy. Regardless, the measure, like so many others (including an earlier attempt to repeal the military's "Don't Ask, Don't Tell" policy), 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.

We believe 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.

Hagel is a former Republican Senator from Nebraska. Hart is a former Democratic Senator from Colorado