Diatribes of Jay

This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

09 October 2010

Two Sentences that Could Save Our Republic


“In all matters for which this Constitution does not require a two-thirds vote, each House shall act by the recorded vote of a majority of its members present and voting, provided that a Quorum is present. Failure of either House for ninety days to approve or reject by such vote any bill approved by the other House, or of the Senate for ninety days to reject by such vote any appointment or treaty referred by the President, shall constitute approval.”

Is our Senate the root of all evil? Quite possibly.

Not only does its filibuster rule allow our ten smallest states to govern us all, although they represent about one-tenth of our population and less than eleven percent of our GDP. The Senate’s “collegial” custom for “holds” allows a single senator from a single state―no matter how small or economically insignificant―to block legislation and presidential appointments permanently. Through so-called “earmarks” a single senator can spend the people’s money at his or her whim, by holding otherwise good legislation hostage.

None of these practices appears in our Constitution―not the filibuster, the “hold” custom or earmarks. Each is an extra-constitutional practice that the Senate itself created, by its own formal or informal rules, arrogating power to its individual members to thwart the general welfare.

Each of these practices by itself is undemocratic. Together, they have been catastrophic. They are not checks and balances; they are unconstitutional arrogations of power to individual legislators that have made our nation ungovernable.

To fix this sorry state of affairs, we don’t need to take away our Senate’s legislative power, as the British did with their House of Lords. All we need to do is fix the Senate rules and make sure the House does nothing equally idiotic.

The two sentences set out in italics could do the job. The first would allow a majority of senators to rule on “regular” matters, just as a majority does in every state legislature and every board of directors across the nation, and indeed across the globe. Things that now require a two-thirds vote—overriding presidential vetoes, impeachments, and expulsions of members—would still do so.

The Constitution already states what a quorum is: a majority of the members of each House. The first sentence therefore would encourage in-person attendance for important votes. In members’ absence, as few as a quarter plus one of members (a majority of a majority quorum) could approve or reject bills, appointments and treaties. Absences from voting would have real bite, which would encourage senators to do their jobs.

The second sentence would require an “up or down” majority vote on any bill or other “regular” matter referred by the president or the House. If no such vote occurred within ninety days, the matter would be approved. This rule would, in effect, abolish the filibuster, holds and other obstructive procedural maneuvers by limiting their maximum duration to ninety days.

The second sentence would have another salubrious effect: accountability. Any senator who wished to oppose a measure or appointment effectively would have to go on record by voting against it. No longer could senators kill good legislation or good appointments by complex procedural measures in the dead of night. They would have to take public responsibility for their votes.

These requirements would apply equally to the Senate and the House, but the Senate today is the chief culprit. Our Constitution gives each House the power to make its own internal rules, but so far only the Senate has chosen to use that power to subvert democracy. It must be reined in.

When our Founders ratified the Constitution in 1791, they could take weeks to travel the length of our then-small nation, from Maine to Georgia, especially in inclement weather. They had no means of transmitting the text of bills or other proposals except in-person travel. Today, we can travel from Hawaii to Maine or Alaska to Florida in a single day. We can publish the text of a bill or a treaty over the Internet in seconds. So we have no excuse for taking more than ninety days to consider any matter of interest to the nation.

The filibuster rule was never intended to require a super-majority vote for every piece of legislation. In fact, it was not even intended to block enactment. Its sole purpose was to cool the heat of popular passion and give time for reasoned deliberation.

Because our electorate is badly split on ideological lines, no party or faction has had an effective filibuster-proof majority for at least a decade. (Despite the Democrats' nominal majority now, the Blue Dogs have kept an actual majority from coalescing around important legislation.) The result has been prolonged paralysis. Our government can act decisively only in extreme cases, like the 2008 economic collapse. A minority can bring our government to its knees by blocking funding for routine activities. This is not reasoned democratic government. It is madness.

The “hold” custom and earmarks make things even worse. They have no rational justification even in theory. By allowing a single senator to hold the country hostage, they give a single man or woman, never elected nationally, a veto comparable to the president’s. When senators approve each other’s holds and earmarks, they give each other the power―and the incentive―to spend the people’s money on things that no rational deliberative body would approve in daylight, like the infamous “bridge to nowhere” in Alaska.

Our Founders wanted checks and balances to contain excesses of power, not create them. They wanted the two Houses of Congress to check the president’s power, but they wanted each House to act as a deliberative body collectively. By giving each senator some of the power of an executive, the Senate’s present rules and customs destroy the carefully balanced governmental structure that our Founders devised. If they could return from their graves, they would reject these anti-democratic practices in a heartbeat.

The two sentences in italics could accomplish that mission, save our government from paralysis, and restore the representative democracy that our Founders intended. We could enact them as an amendment to our Constitution. Or the Senate could enact their substance in its rules.

However our representatives enact them, they had better do so soon. For what the Senate’s rules have given us today is neither representative democracy nor a Republic. It is an oligarchy of individual senators, tending toward anarchy. It not only invites, but begs for, corruption by allowing a single senator to bend the entire legislative process on a whim. The result is a race to the bottom, in which the senator who is up for sale the cheapest seals our national fate.

The people will not wait forever for their Republic to be restored. Any collective action that they might take in desperation is likely to be severe. So shouldn't our elected representatives do the right thing now?

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