In Federalist Paper 62, attributed to the Father of the Constitution, James Madison, the unique role of the U.S. Senate is explained:
“The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions.”
When Madison talks about “factious leaders” and “intemperate and pernicious resolutions” he basically means what we call partisanship and the my-way-or-the-highway approach to legislating that is all too common these days.
Clearly the Senate is not fulfilling the role the Framers of the Constitution intended.
As James Madison wrote in Federalist Paper Number 10:
“Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.”
What’s unique about the Senate is that the rules and traditions force senators to work together to prevent an “overbearing majority” from steamrolling the minority party.
At least that was true for most of my time in the Senate.
In the House of Representatives, the Rules Committee sets out the terms of debate for each bill. Now, the Senate Majority Leader has effectively become a one-man version of the House Rules Committee, dictating what amendments will be debated and which ones will never see the light of day.
This strips the ability of individual senators to effectively represent their state, regardless of party. Blocking amendments also virtually guarantees that any legislation the Senate votes on will be more partisan in nature, violating the very purpose of the Senate according to James Madison.
Everyone complains about the lack of bipartisanship these days, but there is no opportunity for individual senators to work together across the aisle when legislation is drafted on a partisan basis and amendments are blocked. The now routine practice of (blocking) amendments has been a major factor in the destruction on the Senate as a deliberative body.
This is usually combined with filing cloture to cut off further consideration of a bill, which has occurred to a truly unprecedented extent.
In a deliberative body, debate and amendments are essential so cloture should be rare and the abuse of cloture strikes to the very heart of the how the Senate is intended to operate.
What happened during Senate debate on the budget resolution seems to prove that point. The special rules for the Budget Resolution limit debate, so it can’t be filibustered, but allow for unlimited amendments.
A Republican amendment to the Senate Budget Resolution in support of repealing the tax on life-saving medical devices in President Obama’s health care law passed by an overwhelming 79 to 20, with more than half of Democrats voting with Republicans, rather than their party leader.
A Republican amendment in support of approval of the Keystone XL Pipeline to bring oil from Canada passed 62 to 37.
Votes like these that split the Democrats and hand a win to Republicans are exactly what the majority leader has been trying to avoid by blocking amendments.
That’s why the Senate didn’t take up a budget resolution for more than three years. Until we put an end to the abuse of cloture and the blocking of amendments, the Senate cannot function as the Framers intended.
In the face of bipartisan opposition and with no Republican votes, the so called “nuclear option” established a precedent effectively overruling the rules on the books.
A better move would be for the Senate to establish the precedent that filling the tree and abusing cloture to block a full amendment process is illegitimate.
It’s time to restore the Senate so it can fulfill its Constitutional role.