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Filibustered Future 

Without changing its rules, the deliberations will drag on forever

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Senators Lindsey Graham and John McCain recently threatened to put a hold on the pending nomination of Susan Rice to become secretary of state, essentially dooming her prospects. Now Graham threatens another hold, this time on President Obama’s nomination of John Brennan to become CIA director. It’s all about Benghazi, the Republican’s latest red herring.

When a Senator places a hold, which is almost always granted, the nomination is stalled. Even after the hold is lifted and the process begins, a nominee can be held hostage to a filibuster, and today, with recent Senate rule changes, senators are no longer even required to do a Mr. Smith Goes To Washington and kill time in person. Today they just indicate they would do that if they had to — but of course they don’t.

Apologists for the Senate argue these practices are the price we pay for serious deliberation, and, more important, for protection of the minority from the tyranny of the majority. After all, they say, everyone knows that the Senate is the “World’s Greatest Deliberative Body.”

Let’s examine this claim by imagining what James Madison, America’s first political scientist, might say about our goings-on. He opens his Federalist No. 10 with this famous line: “Among the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction.” Madison defines “faction” as a “number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the right of other citizens, or to the permanent and aggregate interests of the community.”

Boiled down, Madison sees a federal republic as our best chance to avoid the dangers of mob rule, which he associated with pure democracy — and our best chance to ensure governing through compromise. Six-year Senate terms and appointments following deliberation of respective state legislatures would ensure both deliberation and protection of minority against majority faction, he figured. (Today we have direct elections of senators, thanks to the 17th Amendment.)

Most skate over Madison’s reference to minority factions as they relate to senators. Indeed, Madison himself seemed not too concerned. Tyranny of the majority was his bigger concern.

Today, as the last four years have shown, what we have to fear is just the opposite — a tyranny of the minority. Sen. Graham offers the most recent illustration; he comes from South Carolina, the population of which amounts to about 1.5 percent of the national population. Yet he alone might kill a critically important nomination made by a recently reelected president who won the support of 66 million Americans.

Or take the case of the Bureau of Alcohol, Tobacco and Firearms. At this time when gun regulation has come back on the table, wouldn’t you think that it is critical that the ATF have permanent leadership? Nope, we have an acting director who works from an office in Minneapolis. Not even President Bush could get his nomination through the World’s Greatest Deliberative Body. Republican senators from Idaho (Mike Crapo and Larry Craig), representing 0.5 percent of the national population, put a hold on the nomination. It seems the NRA opposed Bush’s nominee who supposedly, “had it in for the gun dealers.” Obama has done no better.

If this isn’t tyranny of the tiniest of a minority, what is?

Madison might suggest that we adopt a system that recognizes the federalism in federal, but doesn’t result in a tyranny of the minority. For starters, a few simple reforms of Senate rules are not only doable, but would help shock the paralysis out of the system.

• “Holds” should last for only 45 days. If an up or down vote hasn’t been taken within 45 days, that nominee shall be considered to have been confirmed.

• Senators who intend to filibuster must take the floor and rely on rhetoric; they must stand and deliver.

• Cloture (shutting off debate) should require a 55-vote supermajority, down from the 60 that is stifling so much progress.

But Madison might suggest that we aim higher, at the more fundamental problem — that we allow two senators per state regardless of the state’s population. He actually anticipated this becoming a problem during the debates, which is why he favored proportional representation.

Why not reduce the guarantee to one senator per state, with the second (or third) to be decided on the basis of population? This change would require a Constitutional amendment, which is a long shot, but it needs to be a part of the discussion.

In Madison’s day, the ratio of most populous state to least populous was only about 12-to-1. Today that ratio is an absurd 62-to-1. As a result, every vote cast in Wyoming is effectively equal to 62 cast by California voters. Put another way, fewer than 600,000 Wyoming citizens have the same power in the Senate as 37 million citizens in California.

As one observer put it, the United States Senate: America’s biggest affirmative action program.

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