Originally posted on Real Clear Policy
Supermajority rule “contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail…. a poison …one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory…[It] substitutes the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority.”
Alexander Hamilton, Federalist 22, December 14, 1787
Writing 234 years ago, Alexander Hamilton cast supermajority rule as a poison causing a foreboding “weakness” in democracy — presciently describing America’s plight today.
America is the lowest quality of all rich democracies, with the most unequal individual voting rights. Its embarrassment is documented by the authoritative Freedom House, and includes the U.S. electoral system judged the worst of all rich democracies. The explanation is straight-forward: Compared to other rich democracies, the U.S. political system has stunning defects, including pay-to-play campaign finance, partisan voter suppression, a malapportioned Electoral College (responsible for a fringe Supreme Court and routinely making election losers President) — and the senate filibuster.
The single most impactful, practical and immediate step to correcting these deficiencies is ending the Senate filibuster (supermajority rule).
Democratic Party senators who support supermajority rule are rejecting the Founding Fathers to instead embrace a practice so invidious to democracy that they wrote it out of the Constitution. The filibuster is not a Senate tradition. Nor was the Senate itself conceived to revere minority rights and temper the passions of the House of Representatives.
As Hamilton explained at length in Federalist 22, real world evidence from 8 years of supermajority rule in the Articles of Confederation caused the Founding Fathers to reject the concept. The failed experiment taught a valuable lesson, the reason the Founding Fathers in 1787 presumptively embraced majority rule in the Constitution. (The few exceptions requiring supermajority votes, like expelling members or Presidential Impeachment, are explicitly specified.) The House retains majority rule to this day, but the Senate has abandoned that Constitutional mandate.
Majority Rule is the Senate Tradition
Majority rule is the Senate tradition crafted by the Founding Fathers. It prevailed for half a century until 1837, when senators discovered it had been deleted inadvertently from their rulebook decades earlier. In a routine 1805 procedures update, majority rule was accidentally dropped without senators being aware of the mistake for 32 years. Obstructionists soon began to exploit this accident with talkathons to thwart majority rule — including filibustering legislative efforts to restore majority rule.
Senate Not Designed to Revere Minority Rights
Historic lore is the Senate was conceived to ensure minority interests and those of smaller states. That is incorrect. As a Brookings analysis explained, the Founding Fathers did not design the Senate “to be a slow-moving, deliberative body that cherished minority rights.”
Its design fulfilled a far more tawdry purpose. James Madison, primary author of the Constitution, explained on June 30, 1787 the stark colonial dynamic confronting delegates designing the Senate at the Constitutional convention this way:
The States were divided into different interests not by their difference of size, but by other circumstances; the most material of which resulted partly from climate, but principally from the effects of their having or not having slaves. These two causes concurred in forming the great division of interests in the U. States. It did not lie between the large & small States: It lay between the Northern & Southern.
Their design papered over the slavery question by largely providing Senate parity for slave states. And any minority rights being cherished by their creation belonged to slave owners.
Restore Original Intent with Talking Filibusters
Just as it did during the Articles of Confederation era, supermajority rule has proven problematic — so enervating and disruptive that 161 loopholes to the filibuster were created between 1969 and 2014 — including for critical legislation like budgets, administration appointments and judicial appointments.
The filibuster’s only conceivable virtue is to facilitate debate providing opportunity for a minority to sway opinion and forge compromises. That virtue is far less evident now with polarized legislators. Nonetheless, it is a credible standard for distinguishing obstructionism from an aspirational minority eager to sway opinion and accrete votes.
The test is whether an initial Senate minority can be sufficiently persuasive to soon swell to a majority. One option is to require a continuously speaking filibuster, but sustainable beyond some period (2-4 days) only if a minority has become a majority. This resembles the Harkin proposal. For convenience, filibusters could be scheduled during weekends. To avoid legislative logjams, parallel filibusters (Talk-a-Ramas) could be scheduled, using the original Supreme Court chamber and other Senate spaces.
Majority rule is the soul of popular democracy, the alternative of supermajority rule described by Hamilton as a “contemptible compromise of the public good… a system so radically vicious and unsound,” that it should be rejected. His advice would reestablish original Constitutional intent in returning to the initial Senate tradition of majority rule — a resurrection enabling Congress to begin rehabilitating the structural defects hobbling American democracy.