The Washington elite excuses every failure to drain the swamp by claiming that no significant legislation can be passed without the support of sixty senators, something made impossible by partisan rancor. Respecting this sixty-vote threshold is supposedly essential to respecting a "228-year-long tradition" in the Senate, an element of our Constitutional system of checks and balances.
Don’t believe a word! All of this high-flown rhetoric is a lie, a fraud being perpetuated by the elite to insulate themselves from democratic accountability.
The modern 60-vote cloture rule is a descendant of the filibuster. The filibuster, by which a single senator could block any bill by speaking continuously (as Jimmy Stewart does in "Mr. Smith Goes to Washington"), has never been part of our Constitution. The original Senate rules included the motion of "previous question," by which a simple majority could end debate. The Senate accidentally dropped it in 1806, making the filibuster theoretically possible, but the first filibuster did not occur until 1841, more than 50 years after ratification.
The true filibuster was abolished in 1917, replaced by a rule allowing the Senate to close debate with a two-thirds vote. In 1975, this was changed to the vote of sixty senators, not three-fifths of those actually voting. As a result, 41 Senators can block any bill literally without lifting a finger. As a result of the two-track system for bills (created in 1970), the minority can block any single piece of legislation they oppose without interfering with the passage of other bills. This made obstruction painless and invisible, with a resulting explosion of pseudo-filibusters: 1,700 since 1970, compared to only three or four a year in the past.
What is the real effect of the cloture rule? Who benefits from such a rule?
Clearly, the Majority Leaders do. They are able to defend themselves against rebellion from the ranks, because it is mathematically impossible to reach the 60-vote margin without the discipline provided by the Leader and his Whip. McConnell and Schumer pretend to be implacable foes, but the cloture rule makes them covert allies. The 60-vote rule protects all incumbents from accountability to the voters, since they can also claim, plausibly but falsely, that they were unable to deliver the reforms the people want because of the obstruction of the other party. The cloture rule insulates both parties from accountability to the electorate by alleviating both parties of the responsibility for governing.
Our original Constitution wisely required only simple majorities for all legislation, except for those acts of profound constitutional significance. No other democratic country in the world requires a supermajority to pass ordinary bills.
As the English philosopher John Locke (whose work inspired the American Revolution) recognized, there are very strong theoretical reasons for simple majority rule. Simple majority rule enables government to benefit from the wisdom of the crowds: the well-documented fact that the majority of ordinary people are more likely to be right on any topic than any smaller group, even experts. A supermajority rule deprives the government of that wisdom in all but a few exceptional cases.
Does the 60-vote threshold protect us from bad legislation by making all bills harder to pass? Perhaps, but it also makes very bad legislation equally hard to repeal. In addition, the Democratic Party is clearly moving to the radical left: it is delusional to think that the Sanders-Warren wing of that party will let parliamentary barriers created in the 1970’s stand in way of radical change.
If the federal government were doing little harm now, it might make sense to retain rules that retard legislation. However, the federal government is bloated and dysfunctional. We desperately need legislative reform to rein in the federal monster. Moreover, by emasculating the legislative branch, the Senate cloture rule weakens our system of checks and balances, contributing to a runaway judiciary and rule by executive fiat.
The cloture rule can be ended at any time by a simple majority vote, a principle of the Senate that was asserted in 1917 and re-affirmed in 1957. The Supreme Court ruled in U.S. v. Ballin that each house of Congress is a parliamentary body that can change its rules at any time by simple majority vote.
If the Senate leadership refuses to reform the health insurance system or build the wall, Trump and Pence must lead a rebellion by back-benchers to overturn the cloture rule, and if that fails, Trump must run against the "do-nothing Senate" in 2018, supporting primary challengers to all (both Republicans and Democrats) who obstruct the return of responsible democracy to the Congress.
Rob Koons is a professor of philosophy specializing in logic, metaphysics, philosophical theology, and political thought. He is the author and editor of six books, including "The Atlas of Reality: A Comprehensive Guide to Metaphysics" (with Tim Pickavance, Wiley-Blackwell, 2017). He has been active in conservative circles, both nationally and in Texas, including the Intercollegiate Studies Institute, the National Association of Scholars, the Texas Public Policy Foundation, the Philadelphia Society, and the Austin Institute for the Study of Family and Culture. To read more of his reports — Click Here Now.
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