In the wake of Senate action last week to restore the Senate practice that 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 by the Senate last week 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."
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 at the suggestion of Vice President Aaron Burr, largely because it was deemed superfluous.
Even with the elimination of the motion to end debate, 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, less than one per year.
Eliminating the filibuster on some nominations will not change the basic nature of the Senate as a legislative body. In fact, it is largely a restorative move, returning the Senate to its historical norms, when Senate giants like Henry Clay and Daniel Webster carried the day through the force of their ideas, rather than by manipulating rarely used Senate rules that allowed a small minority to block the will of the people.
Nor will this latest reform turn the Senate into the House of Representatives, as some have charged. The Senate will continue to differ from the House in significant ways. Senators will continue to be elected very six years, rather than every two years as in the House of Representatives. Senators from the smallest states will continue to have the same power in the Senate 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.
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. That the minority should be afforded certain rights within the Senate is without question. But the minority should not have the ability to block legislation. When this happens it creates a situation, says James Madison in the Federalist Papers, in which, "the fundamental principle of free government would be reversed. It would no longer be the majority that would rule: the power would be transferred to the minority."
The fact is that 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. There were only five instances in the original Constitution: 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. And prior to action last week, since 1917, the Senate had passed four significant reforms concerning the filibuster.
An oft -repeated Republican talking point over the past week is that Senate Democrats were "breaking the rules to change the rules." This may be a catchy talking point, but that doesn't make it true. As I already indicated, the original Senate rules actually included a means to end debate by a simple majority. And the Constitution itself specifies that "each House may determine the rules of its proceedings." As Senator Robert Byrd, probably the greatest authority on Senate rules in American history, and himself a staunch opponent of filibuster reform said, "At any time that 51 Senators are determined to change the rule . . . that rule can be changed." That is precisely what the Senate did last week.
Finally, some have argued that the rules change carried out last week by the Senate was enacted simply so that Democrats can carry out their agenda. While this may be true in the short-term, 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 not only obvious, but appropriate. Democratic elections should have consequences. When the American people speak, whether they express a preference for Democrats or Republicans, 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 fact is that reform of the filibuster is not a Democratic or a Republican issue. Rather, at the heart of the debate is a single, simple question - do we believe in democracy? Do we believe that issues of public policy should be decided at the ballot box or by the manipulation of arcane and archaic Senate rules? Those who oppose any change to the filibuster rule, those who oppose the principle of majority rule, in reality are fearful that the people's choices and wishes will be translated into action here in Washington.
The Senate rules reform carried out last week was not about a power grab or about the agenda of Senate Democrats. Rather, it was a vote of confidence in democracy and the good sense of the American people. Our union has endured for more than two centuries because the American people have had the good sense to elect to Congress those whom they deem most capable of carrying out their wishes, and to remove those who fall short. The American people do not fear democracy, and neither should their elected representatives in Congress.