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Rewriting the Rules 

Via filibusters, small-state senators held too much power for too long

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Senate Democrats' recent vote to limit filibusters on certain presidential nominees has become the Republicans' red herring du jour. Columnist Charles Krauthammer, Fox Nation's intellectual-in-residence, denounced what the Democrats did as a "raw power-grab." He charges that, in one fell swoop, they have transformed the Senate into a house without rules.

Krauthammer's histrionically charged traipse down his pathway of imaginary horribles aside, yes, Harry Reid's Democrats reluctantly employed parliamentary procedure to their advantage. So what else is new? Since 2009, Congressional Republicans have relied on arcane Senate procedures and propaganda to derail a president they couldn't defeat at the ballot box. To put it into perspective, this isn't the first time the Senate has changed its rules. "Cloture" was adopted during the Woodrow Wilson years. Then in 1975, the Senate lowered the number of votes required for cloture from 66 to 60, while doing away with the requirement that filibustering senators take and hold the floor as Jimmy Stewart famously did in Mr. Smith Goes to Washington. Today, just by inking a petition, 40 senators from small-population states can stop business.

Indeed, this filibuster binge underscores a deeper problem, one built right into the Senate's DNA. The Senate, from the very beginning of the Republic, has been unduly influenced by senators from over-represented states. Today, senators from states that together make up no more than 20 percent of the total U.S. population can bring the institution to a halt.

Madison and Hamilton saw this coming, which is why they argued that both houses of Congress be elected on a proportional basis. But the less-populated states demanded two senators per state, and the Southern states, most also among the least populated, also demanded that their slaves count as people for purposes of population. These two unprincipled deals — two senators per state regardless of population, and slaves counting as three-fifths of a person — was the price of gaining support from smaller East Coast states and all the Southern states.

The Founders did create the U.S. Senate, which has become what Lewis Gould titled his book, The Most Exclusive Club. Terms were set at six years with the expectation that longer terms would encourage deliberation and buffer senators from the passions of the moment. So how has this exclusive club done over the years?

Actually, not all that well — especially on the big issues. Consider that slavery existed in America until the end of the Civil War in 1865. In the century after slavery officially ended, right up until until Lyndon Johnson's landslide win in 1964, the Senate, influenced by over-represented Southern states that relied on the filibuster as weapon of choice, did nothing at all.

The Senate, through use of the filibuster, put off dealing with the residue of slavery — segregation and voter suppression — for almost a century. The poll tax and literacy tests were the tactics of choice, aided and abetted through shorter voting periods and polling places open for fewer hours, located in difficult-to-get-to places. (Election 2012, with some of the same problems, serves as a reminder that sometimes the more things change, the more they stay the same.)

Moving on from structural entrenchment to passions of the moment, the disastrous Gulf of Tonkin Resolution, which escalated the Vietnam War, was passed by a vote of 98-2 — after less than a day of floor action and debate.

Fast forward: Following 9/11, what passed for a serious deliberation on a resolution authorizing George W. Bush to invade a foreign country that had not attacked America took the form of what Gould describes as "a desultory session that often strayed from the issue at hand to discuss parochial matters; lawmakers debated the order in which they should speak with more fervor than whether the war in Iraq was wise and necessary."

Then there was the Patriot Act, viewed by Gould as "hastily adopted."

Notably, most nominee "holds" have nothing whatsoever to do with the nominee; rather, the senator has a bee in his bonnet about some unrelated political issue. Take South Carolina's Lindsey Graham, for example: He threatens to filibuster all Obama nominations until he gets the information about Benghazi that he is sure the President is hiding. He has to be hiding something: why else would Fox News charge that the administration is hiding something? Actually, Graham doesn't care all that much about Benghazi; what he cares about is looking tough enough to survive an upcoming primary challenge.

Thus it is that the government of the United States is being held hostage to the primary election fortunes of a single senator representing a state that has a population amounting to less than 1.5 percent of the nation's total population.

Where I come from, that's what we call a "raw power-grab." ♦

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