Posts Tagged ‘Nuclear Option’

Filibusters and our undemocratic Senate

November 26, 2013

      The one provision of the U.S. Constitution that cannot be amended is equal representation for the states in the Senate (see Article V).

This guarantee was the price of having all 13 original states agree to a Constitution in the first place.  So we’re stuck with the theoretical possibility that Senators representing 51 states with 18 percent of the population could cast a majority vote.

This doesn’t matter much with enactment of laws.  For a bill to become a law, it must also be approved by the House of Representatives, which is chosen on a population basis, then signed into law by the President or passed over his veto by a super-majority.   But to appoint judges, ambassadors and other federal officers, the President only needs the advice and consent of the Senate.

Most democratic nations have parliamentary forms of government, in which the parliamentary majority chooses the Prime Minister and routinely approves the PM’s proposed laws and appointments.  If the executive and the legislature disagree on any important measure, the people get to vote on who is right.

These systems work well most of the time.  When they don’t work, it isn’t because of the tyranny of a majority, but because there are multiple parties than can’t work together.  I don’t think the people of any democratic country would want to create the equivalent of the U.S. Senate.

We Americans don’t have a choice because the principle of state sovereignty is baked into our Constitution.   I think there is a case to be made for our exceptional system of checks and balances, but I don’t think we need to carry it beyond what our Constitution requires.

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Nuclear options, red and blue

April 27, 2012

American Extremists - Nuclear option (red edition)

American Extremists - Nuclear option (blue edition)

Click on American Extremists for more cartoons.

The nuclear (or Constitutional) option

March 3, 2010

Way back in 2005, the Democrats threatened to filibuster President Bush’s Supreme Court nominations.  Senate Majority Leader Bill First threatened them with what came to be called the “nuclear option” but Frist preferred to call the Constitutional option.

This was simply for Vice President Cheney, as presiding officer of the Senate, to determine that the filibuster was unconstitutional.  This ruling could be appealed, but could be upheld by majority vote.

The Constitutional argument is that the Constitution requires supermajorities for only certain things, such as ratification of treaties by the Senate or overriding the President’s veto.  By implication, everything else is decided by majority vote.  The Constitution says that “each House may determine the Rules of its Proceedings.”  The Constitutional argument is that every two years there is a new Congress, which is entitled to set new rules without being bound by precedent.

The Senate Democrats responded with outrage.  They threatened to use procedural tactics to bring Senate business to a halt, but in the end they gave in.

Now the shoe is on the other foot.  The Republican minority in Congress is exploiting every possible procedural tactic to stall routine business.  I believe there is a place for the filibuster, the “hold,” and the objection to unanimous consent as a way to make the Senate stop and think twice rather than acting heedlessly.  But this requires restraint on the part of individual members so that the Senate can transact its business.  Without such restraint, the so-called nuclear option might be the lesser evil – if the Democrats had the gumption to attempt it, or even threaten it.

The nuclear option is not the same thing as budget reconciliation, which has been used routinely by Congress no matter which party is in power.  This occurs when the House of Representatives and the Senate pass bidget bills that are similar, but not quite the same, and a joint committee hammers out a compromise bill to reconcile them, which can be passed by majority vote with no filibuster.  It is intended for just such situations as health care reform, when the Senate has passed a bill, the House of Representatives has passed a bill and minor changes are needed to reconcile them.

When I studies political science in college, we contrasted the practical, pragmatic American political culture with the ideology-driven French and the inability of their Chamber of Deputies to form a stable government nor address national problems.  Now it is our government that is in gridlock.  Americans are admired for many things, wrote foreign correspondent James Fallows in The Atlantic Monthly recently, but in all his world travels, he never heard anybody say, “I wish we had a Senate like yours.”


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