In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today’s topic: the Founding Fathers’ design for the Senate and for debate in that chamber.
The statement at issue:
This month, Majority Leader Harry Reid and his Democrat colleagues voted to change the Senate rules with a simple majority vote of 51 to 48. Most people would simply shrug and think, “So? Isn’t that the way democracy is supposed to work?” For the past 222 years in the U.S. Senate, the answer to that question has been no….The Senate, in particular, was designed to limit the growth of government….The cloture vote made it easier for government to grow, and, guess what, government grew…The introduction of the cloture vote has certainly proved effective at hampering the Senate’s ability to limit the size and influence of the government.
- Comments by Sen. Ron Johnson, a freshman Republican from Wisconsin, who was elected with strong Tea Party support, in an op-ed column in The Washington Post on October 23, “Why the Senate needs to return to requiring supermajorities.”
We checked the Constitution, and…
The freshman Senator’s comments follow in a sturdy tradition in that chamber, equating the long history of unlimited debate with a supposed design of those who wrote the Constitution to ensure the rights of the Senate’s minority by assuring unlimited debate. By referring to a 222-year history, Sen. Johnson obviously was making a claim that that tradition traces back to the founding in 1789. It is true that for decades after the founding the Senate had no limits on debate. The Constitution, however, says nothing about Senate debates, leaving that entirely to the Senate’s power to write its own rules, under Article I, Section 5, Clause 3. And, under those rules, the Senate has been limiting debate since 1917, when it adopted its first anti-filibuster rule. Such a rule shuts down debate, and thus is called a “cloture” rule.
Sen. Johnson wrote his column in The Post to challenge a late-night maneuver in the Senate on October 7, done to bring about a final Senate vote on a bill dealing with U.S. resentment over China’s currency manipulation. It is significant, though, that the rare but not unprecedented maneuver to change the rules to allow a majority of the Senate to move forward came only after the Senate had already voted, under the cloture rule, to end debate on that measure. What the maneuver accomplished was to stop Republicans from forcing further delay by other procedural devices.
Where Sen. Johnson most clearly departed from the Founding Fathers’ design, however, was in his suggestion that the Founders created the Senate itself in order to “limit the growth of government” – a strong policy goal of the modern “Tea Party” movement. As James Madison’s Federalist Paper 62 pointed out, the Senate plan was drawn up in Philadelphia primarily as a compromise between large and small states, giving the states equal representation in the Senate – an arrangement that is, in essence, permanent because Article V specifies that a state’s equality there cannot be taken away without its consent.
As a secondary objective, according to Madison, the arrangements for the Senate were intended to make that body a more deliberative chamber, better able to check “improper acts of legislation” — that is, able to act as a rein on the presumably more rambunctious House of Representatives, whose membership is chosen based on population and for shorter terms, so its members are supposedly more immediately responsive to the changing and perhaps even fickle wishes of the people.
The Tenth Amendment, added after the Constitution was ratified, is the basic document’s strongest protection against amassing governing power in the national government, at the expense of the states. Filibustering in the Senate, of course, has often been used to reinforce the doctrine of “states’ rights,” but even that practice was designed at least in significant part to protect states’ authority from federal intrusion, not to cut the size of the federal government as a whole.
The Wisconsin senator offered as an example of the consequences of making it easier to cut off debate the passage of President Obama’s massive health care law. But, interestingly, one of the major changes to be made by that measure is the expansion of Medicaid care for the poor and disabled — a massive program to which the states object only because they will now have to pick up a small part of the tab.
It is a constitutional fiction to argue, as Sen. Johnson did, that cutting off debate causes the federal government to grow. Presidents Franklin Roosevelt and Abraham Lincoln — the two presidents who did the most to expand federal powers — did not need cloture votes to accomplish that goal; in Lincoln’s time, cloture votes did not even exist. There are many reasons why power has flowed toward Washington, but the anti-filibuster rule would be far down the list, if it has been a factor at all.
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.