End The Tyranny Of The Minority
We want a peaceful transition of power. That’s not happening this year due to the Senate rules. We could fix this.
I see a nation divided. The nation is divided by the United States Senate. The reason for this is that the United States Senate has rules that appear to be impossible to change. For decades, we have been living under the assumption that the rules created by a previous senate can encumber a future senate. I am here to tell you that there is nothing further from the truth.
All the vitriol, all the protests, and all of the gridlock in Congress come from the Senate. The Senate, in its present form, cannot adapt to change. And don’t tell me that the Senate is a slow, deliberative body. When they want to move, they will move, but only with the blessing of the minority.
I’m here to imagine America as a country that can adapt to change. I’m here to imagine a country that is not ruled by the minority at the highest levels of power any longer. I’m here to tell you that the Senate has every right to change its rules by a simple majority vote. I offer to you now, a video of Tom Udall, esteemed Senator from New Mexico, to explain the history of the filibuster, the one parliamentary move that has turned the Senate into a graveyard of good ideas:
It is the Senate rules that have made it so hard to move legislation. It is the myth, perpetuated by both parties, that the Senate is “a continuing body” that has prevented the Senate from changing its own rules. Tom Udall is here to tell us in that speech and in this very long, very well researched article, “The Constitutional Option: Reforming the Rules of the Senate to Restore Accountability and Reduce Gridlock”, that the Senate can change their rules by simple majority vote. And if they wanted to, they could do away with or severely modify the filibuster. Udall also tells us that the filibuster is no longer used for the original purpose of extending debate. The filibuster is now used as a minority veto, and that is not what the Framers had in mind.
Consider the possibilities here. If the Senate can adopt new rules as they please, then they can eliminate the filibuster if they want to. They can pass legislation by a simple majority vote. Joe Biden could appoint whomever he wanted by a majority vote, rules permitting.
A key point to remember in Udall’s speech above and the article he wrote on the subject is that no senate in the present shall have the power to bind any future senate. This has always been true, but both parties have been exploiting the legal fiction of the Senate as a “continuing body” for power.
In his paper, Udall cites several Supreme Court cases, legal experts, and former senators as being unanimous in their assessment: At the beginning of each new Congress, the Senate has the power to amend the rules or enact an entirely new set of rules at will. The threshold? 51 votes.
That means the US Senate, the slower than molasses legislative body, could write new rules now without a filibuster. It could write new rules that allow a minority to end the debate on any question and proceed to a final vote. The Senate could pass progressive reforms without having to bargain with a pesky minority trying to impose their own sense of oligarchy upon the rest of us.
In his article, Udall also notes the trend over decades of rising abuse of the filibuster. He even calls the filibuster (and the secret hold) a minority veto. The minority party should not have veto power over the majority, but for at least the last 60 years, we’ve been living under a legal fiction that has turned the Senate into a graveyard of great ideas. The veto power should be reserved for the president.
Now Mitch McConnell and his conservative allies will tell you that rewriting the rules to eliminate the power of the filibuster would be toxic to the Senate. But what they won’t tell you is that as the abuse of the filibuster increased over the last few decades, the country has been slowly dragged in the mud, kicking and screaming, towards an inexorably conservative future.
Never mind that even very conservative people like Robert Byrd and Richard Nixon, as noted by Udall, said that no senate shall be able to bind any future senate from changing their own rules. Each future senate has the same and equal power as any senate of the past, and they are free to amend or adopt new rules as they see fit by a simple majority vote of the body. Here is what Richard Nixon said, decades ago:
[W]hile the rules of the Senate have been continued from one Congress to another, the right of a current majority of the Senate at the beginning of a new Congress to adopt its own rules, stemming as it does from the Constitution itself, cannot be restricted or limited by rules adopted by a majority in a previous Congress.
Any provision of Senate rules adopted in a previous Congress which has the expressed or practical effect of denying the majority of the Senate in a new Congress the right to adopt the rules under which it desires to proceed is, in the opinion of the Chair, unconstitutional. (footnote omitted, emphasis mine)
Isn’t it interesting that we just happen to have a Democrat majority (if you count the two Senators that caucus with the Democrats) and the Vice President? Now consider the following thought experiment:
Bernie Sanders proposes new rules to delete the previous rules from “the continuing body” and moves the Senate votes on the new rules. The new rules are not adopted due to the threat of filibuster or worse, and a minority of senators insist on a minimum of 67 votes according to rules “continued” from the last senate, to proceed. At that point, a well-placed lawsuit to the appropriate court could settle the matter. The overwhelming evidence says that the previous rules may be adopted, amended, or replaced completely with a majority vote of 51 votes.
And if no one in the Senate will sue for relief from rules that cannot be changed, The People can sue. The Constitution was written for us. The People have a right to a Senate that has the right to change the rules as they see fit, and that includes tossing the “tradition” of the filibuster. We have standing because the Senate serves at the pleasure of The People.
If you want to break the stalemate in Congress, in the United States Senate, this is how you do it. You propose new rules, you demand a vote, and if the vote is denied due to a minority veto, it’s not a long drive to the nearest federal courthouse to get the ball rolling. Heck, the entire event would be digital, PDFs for briefs, and Zoom for the hearings.
Now I suppose that neither party would want this. Neither party would want to admit to this fiction because they would prefer to get to a place where they could assume unassailable power under that legal fiction.
Normal people would not want that. Normal people would rather see a smooth transfer of power from one senate to the next. Normal people, reasonable people, would want a fresh senate that is not constrained by the rules set by the previous senate. Normal people would not want the present senate to tie the hands of the future senate. And we know from all of those experts and court cases cited by Mr. Udall, that if a senate in on term can enact rules to suit them, the next senate can enact rules to suit the new body. The Senate must be flexible to adapt to change.
Yet, the leaders in the Senate continue to play this charade. They continue to ignore the Founding Fathers and their intentions when they designed the Senate. Anyone who thinks that the new Senate cannot throw off the shackles of the filibuster is not an “originalist”. Isn’t that special? The originalists aren’t even following The United States Constitution. So yeah, I think it’s time for a change. And I can see that even the ‘originalist” judges on the Supreme Court would be hard-pressed to allow this entrenchment of the rules to continue. Especially if they are, as some claim, originalists. The entrenchment of the rules in the US Senate is unconstitutional.
Now look again at the extreme polarization of the nation. We are polarized because we want the other side to change. We want the other side to change because we believe that they have some superpower they can use against us. Look again at the people terrified that somehow, we’ll become a socialist republic and that there is no going back if the Democrats could change the Senate rules by simple majority vote. All that fear and loathing, especially for the people who mobbed the capitol building, that fear is due in part to legislative inertia in the Senate under those fictional rules.
Allowing the Senate to change their rules on a simple majority vote means that when reform is needed, reform can get passed and implemented, regardless of the party in the minority. Better still, a Senate with flexible rules, one that can actually govern, means moderation. Anyone who thinks they have a corner on power will think twice because he knows that in some future senate, unreasonable laws can be far more easily repealed. Senators might actually have to get really practical, even cautious with what they enact, for if their ideas stink the next senate that comes along could replace those ideas with something better.
To heal this country, we must make the US Senate subject to a change in their rules. Once we are all in agreement that the Senate can change their own rules by a simple majority vote, cooler heads will prevail.