Framers never envisioned 60-vote rule

The Gazette Opinion Staff
Published: December 5 2013 | 12:01 am - Updated: 29 March 2014 | 12:27 am in
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By Sen. Tom Harkin

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In the wake of recent Senate action to restore the Senate practice that the president’s nominees receive an up-or-down vote, there has been a great deal of hyperventilating about whether the rules change is consistent with the intent of the Founders and what it means for the future of the Senate.

Some have called it “tyranny.” Others, a “naked power grab.”

In reality, the action taken is consistent with both the Constitution and the Senate rules and two centuries of Senate tradition, and is fully aligned with the intent of the Founders as well.

Both Alexander Hamilton and James Madison indicated in the Federalist Papers a clear belief in majority rule, with Hamilton stating that “the fundamental maxim of republican government ... requires that the sense of the majority should prevail.” Nonetheless, the Founders left the matter of House and Senate procedure undetermined in the Constitution, choosing instead to let Congress determine its own rules.

Article I, section 5 of the Constitution, the Rules and Proceedings Clause, states that each House may determine the rules of its proceedings.

THE ORIGINAL RULES

That is exactly what the Senate did. In fact, the original Senate rules placed no time limit on debate, but also allowed any senator to make a motion “for the previous question,” which permitted a simple majority to halt debate on the pending question and bring the matter to an immediate vote.

This motion for the previous question was eliminated in 1806, largely because it was deemed superfluous.

Even then, filibusters were hardly a defining part of the Senate. Across the entire 19th century, there were only 23 filibusters. And from 1917, when the Senate first adopted rules to end a filibuster, until 1969, there were fewer than 50, fewer than one per year.

Eliminating the filibuster on some nominations will not change the basic nature of the Senate as a legislative body. Nor will this latest reform turn the Senate into the House, as some have charged.

The Senate will continue to differ from the House in significant ways. Senators will continue to be elected every six years, rather than every two years as in the House. Senators from the smallest states will continue to have the same power as senators from the largest states. And the Senate will continue to operate in most instances based on unanimous consent, unlike the House.

In addition, the reforms enacted by the Senate pertain only to nominations, which are themselves solely the province of the Senate.

MINORITY RIGHTS

That is not to say that I would not support changing the filibuster with respect to legislation as well. If the Senate were to take that step, however, it would be critical that the changes preserve the rights of the minority to offer relevant amendments and to have extended debate.

But the minority should not have the ability to block legislation.

The filibuster is not, and never has been, the sacrosanct soul of the Senate that some are now making it out to be. The framers never envisioned that a supermajority of 60 votes would be required to enact virtually any piece of legislation or to confirm nominees. Indeed, the Constitution was very clear about where a supermajority was needed: ratification of a treaty, override of a veto, votes of impeachment, passage of the Constitutional amendment and expulsion of a member.

Moreover, reform of the filibuster stands squarely within a tradition of updating the Senate rules as needed to foster an effective government that can respond to the challenges of the day.

The Senate has adopted rules to reform the filibuster in numerous circumstances, such as war powers and the budget.

THE LONG VIEW

Finally, some have argued that the rules change enacted simply so that Democrats can carry out their agenda. Those with a longer view of history know that, eventually, Republicans will come to power, and they too will then have the ability to carry out their own agenda.

This is appropriate. Democratic elections should have consequences. Those who win a majority at the ballot box should have the ability to carry out their agenda and then be held accountable to the public. This is as true today as it was nearly 20 years ago when, as a member of the Senate minority, I first introduced a proposal to reform the filibuster.

The American people do not fear democracy, and neither should their elected representatives in Congress.

Tom Harkin is Iowa’s Democratic U.S. senator. Comments: http://www.harkin.senate.gov/contact.cfm

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