As the Senate filibuster debate reaches its climax, it will become increasingly clear that the central player is neither Senator Bill Frist nor Senator Harry Reid but, rather, Vice President Dick Cheney. As president of the U.S. Senate, he is the guardian of its rules. Yet only if he betrays his trust to the Senate can Frist's efforts to destroy the filibuster succeed.
The key rule in this debate isn't the one that requires 60 senators to end a judicial filibuster. It isn't even the special provision that requires 67, rather than 60, senators to terminate debate on those special occasions when the Senate is considering a change in its standing rules. It is Rule 5: “The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.” The only way of changing the filibuster provision that is “provided in these rules” is the one that requires 67 votes. If Cheney followed Rule 5, he would have to rule out of order any effort to change the filibuster provision with less than this kind of super-majority support.
It really is as simple as that -- which is why the leadership isn't consulting with the Senate parliamentarian. Instead, Cheney has announced that he won't enforce the rule, which expresses the consistent understanding of the Senate for two centuries. He will put the power of his office behind Frist's complex parliamentary maneuvers that aim to nullify the key provision. And if the Senate ties at 50-50, he will cast his deciding ballot in favor of destroying the rules that, as the Senate's presiding officer, he is charged with enforcing. No Senate president has abused his power like this in American history.
Cheney is taking this step in a case in which the executive branch has an obvious conflict of interest. By nullifying the standing rules, he will weaken the power of the Senate to resist President George W. Bush's nominees for the judiciary. By betraying his constitutional obligation to the Senate, he will be undermining the separation of powers.
When the Founding Fathers first designated the vice president as president of the Senate, they did not think this would happen. They believed that the vice president would be a leading opponent of the sitting president, not his hatchet man. They expected the Senate president to defend its prerogatives in the system of checks and balances.
To see why, we must explore a bit of constitutional history. Under the original U.S. Constitution, members of the Electoral College didn't cast one ballot for president and one for vice president. The Founders distrusted political parties and sought to minimize their influence. They refused to allow electors to designate a party ticket for a two-candidate slate, as they do today. While electors were each given two ballots, they were told to cast both ballots for the men they considered best qualified for the presidency. The candidate with the most ballots became president; the runner-up became vice president. This system virtually guaranteed that the vice president, serving as president of the Senate, would be the president's principal political antagonist.
But party politics quickly proved too powerful for the Founders' ingenious efforts. During the election of 1800, all the Republican electors voted for the party ticket of Thomas Jefferson and Aaron Burr, giving each of them 73 votes in the Electoral College. Although everyone knew that Burr was the party's vice presidential choice, the tie threw the proceedings into the House of Representatives, and the Federalists almost succeeded in making Burr president. When Jefferson finally ascended to the presidency, the Republicans made sure that the problem wouldn't happen again by enacting the Twelfth Amendment, which created the Electoral College voting system we have today.
But the Jeffersonians failed to consider how this constitutional change could transform the Senate presidency into an instrument of presidential power. It inadvertently created a constitutional time bomb that has been ticking for two centuries. It hasn't gone off only because vice presidents have understood that the Senate was its own place and that their constitutional responsibility was to protect the integrity of its procedures.
Cheney, however, has been remarkably aggressive in his assertions of presidential power, and the present struggle over the filibuster provides him with yet another opportunity. It is up to 50 senators to determine whether they will assist him in his assault and bring the era of Senate independence to its close.
Bruce Ackerman's new book, The Failure of the Founding Fathers, will be published by Harvard University Press in the fall.