Originally published on November 29, 2013 on the San Francisco Chronicle
Photo: J. Scott Applewhite, Associated Press
After years of threats, the Senate finally “went nuclear” last month. Republicans will no longer be able to insist on a supermajority to approve certain judicial candidates. The immediate goal is to make it more possible to get judges approved. There are currently 93 vacancies in the federal judiciary alone. More than 10 percent of the entire federal judicial system is vacant. Not to mention that this Congress is the least productive in history, with the ratio of bills passed to bills introduced dropping to below 10 percent for the first time. So this rule change is a step in the right direction.
But big problems surrounding the filibuster itself remain, and they feed directly into the brokenness of our democracy. If we really do want to nuke special interests, gridlock and entrenched corruption with a democracy bomb, we must expand the change begun Nov. 21 to apply to all Senate business.
At the heart of this whole debate is the simple yet radical notion of majority rule. Now, 237 years after our independence, we’re still fighting for this concept.
The Articles of Confederation were a failure, and it wasn’t until the United States of America began operating under the Constitution in 1789 (13 long years after independence), that we got a country where 51 percent was enough to win.
Why were the Articles of Confederation no good? Because we were too scared to really try majority rule. But it turns out democracy can’t work without it. Back in 1776, the idea that one vote could swing things either way was just too radical. The best they could do was nine out of 13 states to pass anything, and any one state could veto. With such a supermajority, no laws could get passed – and weren’t. Taxes couldn’t be levied – and weren’t – and we couldn’t agree on anything.
So we tried again. James Madison and others wrote the Federalist Papers, which said we should overcome our fears about this crazy new idea called democracy and give it a try. He wrote in Federalist 58:
“It has been said that more than a majority ought to have been required. … These considerations are outweighed by the inconveniences in the opposite scale. In all cases where justice or the general good might require new laws to be passed, the fundamental principle of government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority.”
Sound familiar?
On the other hand, this new proposal called the Constitution correctly anticipated that if we had the bravery to try majority rule, Congress would be doing a lot of legislating, a lot of debating, a lot of voting and a lot of passing of bills. It might be messy, but the status quo would always be at risk of being changed by voting. And that would keep the legislators honest.
And it was this brilliance in revising the rules for what makes a government of, by and for the people that proved to make all the difference, both in concocting the first-ever democracy formula that worked and in identifying why democracy would fail if the ratios of its ingredients were upset.
So how does the filibuster fit? It doesn’t.
It isn’t in the Constitution, and the very notion of requiring higher thresholds than are spelled out by the Constitution may itself even be unconstitutional. Yes, there are a few specific instances where a supermajority is explicitly required by the Constitution, such as treaty ratification, but the whole point of hitting the reset button in 1789 was to end tyranny by the supermajority.
So what is this filibuster thing? It emerged as a political technique in the 19th century. It was a way of delaying a vote by having one guy talk a long time. It gave the minority a chance to get their act together.
For some reason, in 1975, the senators then in power changed the rules. They allowed senators to “phone it in.” Rather than have to show up and hold forth, it was enough for senators to just threaten that they would filibuster. This had the effect of making everything a filibuster. And the only way to break a filibuster is that a supermajority of at least 60 percent has to agree. And that is where we are today.
From 1776 to 1789 and from 1975 to 2013 we have had the same problem of supermajority paralysis because we no longer have majority rule!
As Thomas Jefferson predicted:
“The first principle of republicanism is that the lex majoris partis is the fundamental law of every society of individuals of equal rights; to consider the will of the society enounced by the majority of a single vote as sacred as if unanimous is the first of all lessons in importance, yet the last which is thoroughly learnt.”
Indeed, we are late in learning this lesson. Our two esteemed senators from California came around and supported the recent mini-reform – a good sign. Let’s support and encourage them. Better yet, let’s let them know we want them to go all the way. The call that we need: Get back to the America of the Federalist Papers, to majority rule.
So call and text and tweet and post! Tell our senators: Let’s get on with our experiment!
Lawrence Axil Comras of San Francisco is an alumnus of Junior State of America and operates the political website Unclesamsblog. He is a software designer and serial entrepreneur and until 2010, was the CEO of Greenhome.com.