Sauce for the goose: the 41-vote rule

I strongly criticized the 41-vote rule in the Senate when the Republican minority used it to block legislation and appointments proposed by President Obama.

Now Democrats are using the same rule to prevent the Republican majority from disapproving the Iran nuclear inspection deal negotiated by President Obama and other world leaders with the Iranian government.

I am glad of the result, but I still think it is a bad rule.

The rule allows Senators to use a kind of virtual filibuster to block Senate action, which can be over-ridden only by a vote of 60 Senators.  It is not part of the Constitution.  It is not a law.  It is a rule of the Senate itself.

The United States already has more checks and balances than any other contemporary democracy.  Laws, appropriations and taxes require approval of a House of Representatives elected by popular vote, a Senate elected on the basis of state sovereignty and a President elected by a hybrid system through the Electoral College.

Even then, the Supreme Court, which is appointed not elected, can overrule decisions by the President and Congress.

I don’t think the United States needs more checks and balances than are provided for in the Constitution.

Filibusters and our undemocratic Senate

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.