The Founders Cared about the Majority Principle

james madison

James Madison

When the Senate reconvenes January 24 it will have to decide whether to accept the rules reform introduced by Senators Tom Udall, Tom Harkin, and Jeff Merkley. The target of the rules change is the filibuster, which Republicans invoked more than a hundred times in the session that ended in December.

The three senators’ reforms are mild correctives of this abuse of majority rule. They would eliminate filibusters to prevent legislation from coming to the floor for debate, while retaining filibusters to block passage of a bill. More significant, the proposed changes would require that Senators who filibuster actually filibuster, that is, hold the floor by continuous speaking.

If Senators Udall, Harkin, and Merkley want radical reform they should follow Tea Party members right back to the founding era when it took only a simple majority to stop debate or pass a law. In the first eight sessions of the Senate any member could “call the question” which meant ask for a vote on the measure before the Senate.

Partisan hostility abounded after the raucous campaign in which Jefferson defeated John Adams for president in 1800, but that’s not why the Senate shed its majority rule. Rather the non-debatable motion to move to a vote slipped out of the Senate’s rules for lack of use. Aaron Burr who presided over the Senate as Jefferson’s vice president from 1801-1805 recommended dropping in an effort to simplify Senate rules. As he pointed out in his farewell address, the question had been called only once during his term.

Many of the founding fathers regretted the compromise that gave each state — regardless of size — two seats in the Senate. They certainly didn’t want the Senate to deviate any further from majority rule. In “Federalist No. 58,” James Madison, the putative father of the Constitution, called the desire for a supermajority to form a quorum a reversal of “the fundamental principle of free government,” adding that it “would be no longer the majority that would rule; the power would be transferred to the minority.”

It wasn’t until the late 1830s that a few senator saw the possibilities for obstructing unwanted legislation through unlimited debate, which the absence of a “call the question” rule permitted. That’s when the practice acquired the name “filibuster,” a Dutch word for freebooter or pirate. To outsiders it looked as though someone had pirated the floor of the Senate.

By the early twentieth century, the frequent use of the filibuster led President Woodrow Wilson to call the Senate, “the only legislative body in the world which cannot act when its majority is ready for action.” Instead, he continued, a “little group of willful men, representing no opinion but their own have rendered the great government of the United States helpless and contemptible.”

In 1917 Wilson succeeded in getting the Senate to pass a rule permitting 66 percent of the senators to end a filibuster — the so-called cloture rule. His stick? He refused to call a special session of Congress to deal with the war emergency until the Senate did so. Filibusters outraged him, even though there had been only one a year between since 1900. And there the practice rested — a rarely used indulgence, reined in a bit.

In 1975 the Senate introduced a new wrinkle when it voted to allow 60 percent instead of 66 percent of the senators to end a filibusterer. But it made using a filibuster infinitely more easy by permitting senators merely to indicate an intention to filibuster. Henceforth, they would not have to get up and speak for hours like Jimmy Stewart in “Mr. Smith Goes to Washington.” Even this “silent filibuster” occurred infrequently until the last two sessions of Congress.

Because voters have regularly exercised their power to “throw the rascals out” during the last decade, both Democrats and Republicans, plunged into minority status, have availed themselves of the filibuster. They have blocked legislation from coming to the floor and prevented votes on presidential nominees that require Senate confirmation.

For our political parties, the filibuster is clearly an effective weapon; for the voters it is a hindrance to good government. Wilson’s “little group of willful men” is not what people go to the polls to elect.

Listening to a reading of the Constitution, as the House of Representatives did to open the new session, is no doubt salutary. It would be even more supportive of our constitutional government if senators agreed to follow the procedures of the founding members of the Senate and return to majority rule.

Joyce Appleby

Republished with permission from the History News Service.

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