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Save the Filibuster!

The author says a simple majority shouldn't be able to change the rules.

They are at it again. Republicans in the Senate are taking the unsupportable position that three existing D.C. Federal Circuit Court vacancies should not be filled. They claim that President Obama wants to “pack” the court, FDR style. But their real concern is about the ideological direction of the court, not its size.

Back home in Nevada, a frustrated majority leader, Harry Reid, is yet again suggesting that he might employ the “nuclear option.” That’s the parliamentary sleight of hand that could allow the Democrats to ignore Senate rules and precedents, end the debate, and change the rules with a simple majority vote. Existing Senate rules say this requires 67 votes.

In a recent interview, Senator Reid raised that specter again and, at the same time, apparently conceded that the use of the nuclear option would inevitably lead to complete elimination of the filibuster. He declared, “We don’t want the House and Senate to be exactly the same.” He added, “Unless they [Republicans] change, I think that’s where we’re headed.” That’s new. In the past, proponents of the nuclear option have claimed only that they intend to make modest changes, such as requiring that any filibuster be a “talking filibuster” – think Rand Paul’s recent 13-hour marathon on drones — or eliminating the filibuster for executive branch nominations only.

So far, no member of the Senate has demanded a complete end to the filibuster, although some have called it unconstitutional. One of the reform leaders, Sen. Tom Harkin (D-IA) has done so on the Senate floor.It has long been a complaint of those seeking to sweep away the filibuster that the minimum 41 senators it takes to block cloture and sustain a filibuster hypothetically represent an even smaller minority of the population. This, they say, is undemocratic and unconstitutional.

Senator Harkin has declared, “We simply cannot govern a 21st Century superpower when a minority of just 41 senators, representing potentially as little as 11 percent of the population, can dictate action — or inaction — not just to the majority of senators but to a majority of the American people.”

The advocacy group Common Cause, arguing that the filibuster is unconstitutional, told the federal court that the Senate’s cloture rule requiring 60 votes to cut off debate gives, “senators elected from 21 states that may contain as little as 11 percent of the U.S. population an absolute veto power over bills, resolutions and presidential appointments supported by senators who represent 83 percent of the people of the United States.”

While the calculation is potentially accurate, it grossly misrepresents the founding fathers’ design of the Senate. (It also assumes a scenario in which only senators representing the 21 most sparsely populated states oppose cloture—a highly unlikely circumstance that almost certainly has never occurred.)

The founding fathers greatly feared the “tyranny of the majority” – and they created the Senate to avoid what they deemed the rule of the mob.

The Senate was the result of the “great compromise” at the 1787 Constitutional Convention, which shaped the body to represent the states. Each state has two senators regardless of its population size – an idea so important to the framers that the Constitution in Article V requires that “no State, without its consent, shall be deprived of its equal suffrage in the Senate.” Therefore, changing the Senate’s composition would, in effect, require unanimous consent of the states, not the usual three-fourths needed to ratify a constitutional amendment.

With two senators representing each state, the idea that a Senate majority must somehow reflect a majority of the population is simply wrong.

And consider this: Should the Democrats choose to trigger the nuclear option, a majority of senators might represent as few as 17 percent of the population using their own counting methodology. Stretching the hypothetical a little farther, a quorum requires only 51 senators. Therefore, 26 senators from 13 states representing a mere 4 percent of the population could provide the simple majority to change the rules!

In the “post-nuclear Senate” where a simple majority could change the rules at any time, the minority, like in the House of Representatives, would have little protection. The House is simply controlled by its majority party. The minority is rarely consulted, speech can be severely limited, and amendments are often not permitted at all.

Recently, 26 Democratic senators, including filibuster reform leaders Harkin and Sen. Jeff Merkley (D-OR), wrote to Texas State Senator Wendy Davis admiring her filibuster in the Texas legislature, a move that temporarily blocked a restrictive anti-abortion law. They wrote: “Your steadfastness sets an example that one person’s voice and commitment can make a difference. As senators, we were awestruck as we watched you stand on the Senate floor of the Texas legislature for hours in the face of ideologically based attempts to pass legislation that would threaten women’s health. ”

The Texas law was eventually passed in the next session because the legislature’s rules do not protect the minority, like the U.S. Senate’s filibuster. But if a simple majority, whether it represents 4 percent of the population or more than 50 percent, can change the rules at any time, Wendy Davis’s will seem a lonely last stand indeed.

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