The tyranny of the Senate

The single biggest obstacle to getting health care reform passed through Congress is not the health insurance lobby or any objections from doctors.  If health care reform is not passed, it will be because of the governing structures laid down more than two centuries ago by our founding fathers and specifically the Senate, which as currently constructed, represents the greatest threat to democracy in America today.

To understand the Senate, it is worth going back to its founding.  The Constitutional Convention was deadlocked in the Philadelphia Convention of 1787 about how to construct the legislative branch of the country. There was a divide between large states and small states about whether the body should be based on population or equality representation for all states. Roger Sherman led the way for a compromise plan with the lower house being elected based on state population and the upper house based on the state elected by the state legislature of that state. The lower house had the power to originate articles of impeachment and revenue bills and the upper house had powers over confirmation for executive officials.

Why does the Senate exist?  It exists to allow the voices of the smaller states to be heard during the legislative process. Therefore, we as America have made the decision that there is something so vital in the interests of hearing the voices of states and especially small states that we should embrace a radically antidemocratic body to do so. It is astounding to realize how astoundingly undemocratic the Senate is. California is a highly diverse state with cities, suburbs, and rural areas, desert, mountain and coastline with 36,756,666 people. Wyoming has 532,668 people or 1/69th the representation of California. In fact, California has more people than the 21 least populous states combined. In the Senate, there is one California senator for every 18.38 million people, while in Wyoming that number is 261,000.

The issue that really shows this disparity comes from the fact that a state legislature is not constitutionally allowed to apportion their state legislature in the way that our national legislature is apportioned. Baker v. Carr was decided in 1962 and came from a suit from a Tennessee man whose county had about ten times more residents than some of the rural counties. The subsequent case of Gray v. Sanders formulated the famous one-person, one-vote rule, invalidating the upper chambers of many states, who were forced to change their system from one based on geographical representation by counties to being based on population. Justice William Douglas had a great quote in his decision where he said “The concept of political equality…can mean only one thing—one person, one vote” as he ruled that this system violated the equal protection clause of the 14th amendment. The arguments for county representation is similar to the arguments for state representation.

One can argue for the interests of all perspectives and the historical usefulness of the boundaries, and yet the court struck them down as unconstitutional.

Finally, we not only have an undemocratic, unrepresentative body making decisions that benefit rural states, but we also have them doing it with the stupidest and most arcane set of procedures that slow down and help to destroy the legislative process. Debate is unlimited on each bill and it requires the consent of every member of the Senate to agree to limit debate. The leadership must get a consent agreement to bring a bill to the floor to initiate consideration, limit time for debate, amendments, and to ultimately close debate.

Each one of these motions can be held up by an individual senator through a “hold” where they can deny that agreement and cause days of official proceedings to be required to occur before the bill can even be brought to the floor. If the minority does not wish to end debate, it requires the leader to file for cloture, wait several days for the vote to end debate, then finally vote on the actual measure.

The use of the filibuster has also grown tremendously in recent years, especially after the Democrats took control in 2006.

The last Congress set a record with 140 filibusters, nearly doubling the previous record of 82. The result is an undemocratic body that requires a supermajority to accomplish even the most basic of legislative tasks.

The implications of this process for health care reform and every other major legislative initiative are staggering.  To get to the floor to even be considered or amended required a cloture vote after the Republicans filibustered that.  It is ironic that a procedural objection that is designed to extend debate is now being used to attempt to stifle and prevent any debate on the bill.  The motion passed with the bare minimum of sixty votes and the bill is now on the floor.  However, every amendment is subject to a cloture motion, taking up to sixty hours of debate on the floor and requiring a threshold of sixty votes to get through.

Once the bills gets through all of the amendments, which the Republicans will be able to offer ad infinitum, the Democrats will be forced to get through another 60 vote threshold on a filibuster vote to end debate on the bill and just get to a final vote on the bill.

The bottom line is that the bill is able to be held up by a minority of the Senate, an already undemocratic institution.  In fact, the 40 senators who filibustered the motion to get to the floor represent only 35% of the population. A filibuster can occur with only the senators representing 7.4% of the population. 
If Democrats are able to pass health care reform in this atmosphere, it will be an astounding political achievement, occurring against a process stacked against anything being able to happen in the most undemocratic institution in America.

Tom Duvall is the Vice Chair of the College Democrats at the University of Michigan. To read more, visit
umichdems.com/blog.