In 1906, journalist David Graham Phillips scored a best-seller with his book The Treason of the Senate. “The Senate is the eager, resourceful, indefatigable agent of interests as hostile to the American people as any invading army could be,” Phillips wrote.
There’s a good case that the “millionaire’s club” of 1906 was Audie Murphy compared to today’s Senate.
The case against the Senate—and in particular against the misuse of the filibuster to paralyze the federal government—is brilliantly laid out in the Complaint filed last month by Common Cause in the federal District Court for the District of Columbia (It’s good: download it and read it now).
The complaint is a great service to public education. But the remedy Common Cause is seeking—judicial invalidation of part of Senate Rule XXII—is not only beyond the authority of the courts, but would, if granted, create a precedent worse than the disease it attacks.
The Constitution gives each House the power to set its own rules, with no mention of courts. Asking judges to step in moves us further down the road of judicial involvement in every matter of policy and politics. Federal courts increasingly view themselves as the only legitimate policy-making arm of the federal government. Inviting them to direct operations of the Senate only feeds the current sense of judicial omnipotence. That black-robed hubris is as deadly an enemy of democratic self-government as is the dysfunction—and the “treason”—of the current Senate.
The Complaint is at its strongest in describing the growth and abuse of the filibuster. Under this strange procedural quirk, any objecting Senator can require a vote of 60 or more Senators before the body can vote on a given bill. As the Complaint notes, “[d]uring the 111th Congress that ended in December 2010, over 400 bills that had been passed by the House of Representatives—many with broad bipartisan support—died in the Senate without ever having been debated or voted on … .” That’s not counting the hundreds of presidential nominations blocked by filibusters, even though the ongoing vacancies threaten to paralyze the courts and the federal bureaucracy.
The word “filibuster” originated as a term for swashbuckling rogues who conducted personal wars—like William Walker, the pro-slavery extremist who took over Baja California, and later Nicaragua, only to be disavowed by the United States. The filibuster is not in the Constitution; it wasn’t permitted under Jefferson’s original manual of Senate procedure. Painfully enough, it seems to be the historical legacy (along with the murder of Alexander Hamilton) of the third Vice President, Aaron Burr.
First used in 1841, it has been under almost constant attack since 1917, when a few anti-war Senators took to the Senate floor to try to block a bill to arm American merchant ships, a measure they saw—correctly—as a step toward war. But the attack has usually failed; a party in the majority tends to block limits because of the fear that it will end up in the minority again. (Republicans from 2004 to 2006 tried to block filibusters of presidential nominees; Democrats screamed bloody murder. When Democrats gained control in 2008, some members proposed filibuster reform, but were blocked by the leadership.) And abolishing filibusters entirely would, under the Senate rules, take a two-thirds vote.
So why shouldn’t a federal court step in on the grounds that, as Common Cause puts it, “the Senate is incapable of restoring majority rule”? There are several reasons. First, the lawsuit proceeds on a flawed premise: that the “fundamental principle of majority rule [is] embedded in the Constitution.” I wish that were true, but to find that premise in our Constitution takes some juggling of historical facts. That’s particularly true when we are talking about the Senate, in which tiny Wyoming has the same two votes as California, nearly 70 times its size. That inequality, which empowers small-state voters, was written into the Constitution, and to get around the history, Common Cause argues that the original “equal suffrage” provision still preserved “a degree of majority rule,” but that changes in population have made the Senate “less democratic and less representative” than in 1787. They don’t ask the courts to proclaim majority rule in all things—that would do away with the electoral vote system and probably the Senate itself, and no court will ever go that far—but to find a line beyond which “undemocratic enough” becomes “too undemocratic.” What standard of law does this invoke? Where is a court to find that line beyond in the judges’ own personal views of democracy?
And that’s the second, and greater, flaw in the idea of begging the federal courts to save the Senate. Contempt of Congress is endemic on the bench. We saw it in the ridicule heaped on the Affordable Care Act by extremist judges like Roger Vinson and Antonin Scalia, who want to strike down the ACA in its entirety on the grounds that it was passed by politicians, and that judges could do a better job.
Americans have a lingering belief, left over from the days of Earl Warren and Brown v. Board, that the federal courts are in the business of protecting the people. Over the broad sweep of American history, however, the federal courts have usually devoted themselves to reversing progressive victories. Inviting federal judges to restore democracy is like inviting the Taliban to protect religious freedom.
The “treason” of the Senate can only be tamed by the people—by the kind of sustained popular outrage that sparked Phillips’s book in 1906 and led in 1913 to the Seventeenth Amendment and popular election of Senators. The filibuster will end when ordinary people want their Senators to stop using it. Common Cause’s Complaint can, if widely read, help move us toward that happy time—but not if it convinces its readers that a court order will solve our problems.
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