Letter 2 America for January 4, 2013

Dear America,

A search of the internet and other media demonstrates that the filibuster is on the minds of those who report and comment on current events.  The question is, are our senators thinking about it.  On the first day of each new congress--congresses last for two years, and thus such a day as this comes only once every two years--a simple majority of our senators can change the rules by which they operate.  But there is debate over the issue of The Senate's power to change its rules in light of rules promulgated during the first congress, and that issue may arise again.  In my opinion, and I admit that I am not a constitutional lawyer, Section 5 of Article 3 of The Constitution gives each house the unrestricted power to "determine the rules of its procedure," with the single limitation that it takes a two thirds majority to expel a member.  Thus, any way The Senate chooses to make its rules is permissible constitutionally, and the only issue is whether a prior congressional rule can abridge that right.  The Constitution does not contemplate that issue, though it has been debated on the floor of The Senate, but that body has amended its rules from time to time, and thus, I conclude that it may do so now with regard to the filibuster and cloture of debate promulgated as Rules 22 and 23 of The Senate's permanent rules, or for that matter in any other regard.  So, will they amend the rules that govern debate so as to alter or abolish the filibuster and restore the rule of the majority to The Senate?

The short answer is, ask Harry Reid, the Majority Leader of The Senate.  He controls the calendar on which issues are brought to the floor for votes, and there are enough votes in his caucus--the Democrats in The Senate--if he can wrangle them onto his side.  He has pledged on the first day of the new congress not to end day one of the session in The Senate until an agreement about rules changes has been reached, and some Republicans may agree to the changes he has proposed thus obviating a party line vote and an accusation of partisanship.  But the real problem in The Senate is not just the political chasm between the two parties on this and other issues.  It is the conceit of The Senate as a body, which is predicated on the notion that it is the more mature and restrained of the two bodies in our bicameral legislature and was intended by the founding fathers to be the voice of moderation that keeps the raucous House of Representatives from going hog wild in promulgating into law the will of the majority of the American people.  That conceit was formalized in "The Federalist" papers, which were created as a panegyric for the newly written and pending Constitution that had not yet been ratified and was in peril of not being ratified at all.  The authors were Alexander Hamilton, who was then thirty years old, John Jay and James Madison who was only thirty six--a trio analogous to Abbie Hoffman, Jerry Rubin and John Kerry in terms of experience with life, one of whom, Hamilton, was so hot headed as to be killed in a duel--yet their words and ideas, eloquent as they may be, still guide our politicians with regard to the meaning of The Constitution despite their callowness.  In short, our politicians feel bound by the ideas of a group of sixties radicals...who lived in the seventeen sixties rather than the nineteen sixties.  In more than one of those Federalist papers--numbers 61 and 62  in particular, both of which were written by one or the other of the two youngest authors of the papers--the role I just described was assigned to The Senate, modeled on previous legislatures including the British Parliament's House of Lords, in which hereditary titles are the basis of membership.  The theory on which the purported need for a Senate is based is that the longer term of service prevents frequent change and thus volatility, which serves the purpose of creating a body of grayer, and thus calmer heads not so susceptible to influence by the mob: the American people.  And that purpose may have been well advised at that time when education and analytical thinking were unevenly distributed, but in practical reality The Senate has by now demonstrated, especially over the past four years, that it is undistinguished from the purportedly mob-controlled House in that both houses of congress are now hostage to the reactionary right.  Thus, ceding to The Senate the power to flout the popular will by the undemocratic practice of allowing the minority to veto the will of the majority with a filibuster is an anachronism.  This isn't ancient Greece, nor is it even the colony of Maryland, which also had a Senate according to number 61.  This is the United States of the twenty first century, and The Senate of this age is just as partisan, fickle, venal and ruled by the self-interest of its members as The House, if not more so.  The notion that The Senate is above the fray is nothing but a conceit of that body now, and it should be abandoned as a rationale for anything, but especially for the power to preempt the will of an unruly people expressed in democratic elections.

So now, Harry Reid and his heard of Democratic cats can take that power away from the recalcitrant, Tea Party cabal that the modern Republican Party has been commandeered by if they have the political will and discipline to do so, and thus to restore control of The Senate to the American popular majority.  By doing so, they can free the legislature from the tyrannical grip the Tea Party conservatives whose prudence is questionable at the very least whether they are Congressmen or Senators.  But regardless of their wisdom or the lack thereof, their reign of terror has been deleterious to the legislative process and it continues to be inimical to the principles of democracy on which our legislative process is predicated and dependent if democracy is to prevail in this country.  The filibuster is the enabling factor in their diversion from a minority position of our nations' majority's intended direction.  This detour into ideological obsession that has led us to our current plight--becoming more and more entrenched over the past thirty years to the point today at which the conservative tail can wag the national dog--could be over with just this one measure.  It seems only fair that it happens, so the question of the day is, what will Harry do.  And that's not an idle question.  Our future may depend on it.

Your friend,

Mike