Don’t Blame the Founding Fathers

With the recent government shutdown, the pundits are working overtime providing explanations for the mess in Washington.  One of the more popular is the Senate’s archaic rules.  Our old two-party system with its primaries are just too divisive, making compromise more difficult if not impossible. This implies the work of the founding fathers is somehow standing in the way of a functioning government.  In fact, this couldn’t be further from the truth. There is nothing in our constitution about Senate Rules, political parties or primaries. All have at best a mixed record.

In order to have a budget and pay our national bills we presently need 60 votes in the Senate thereby handing veto power over to the minority.  Sounds as if this was one of the check and balances embodied in the Constitution.  Not so. This is just a rule of the Senate itself.  The idea of speaking endlessly to delay or defeat certain legislation goes all the way back to the Roman Senate. Our Senate in its wisdom instituted the rule in 1806 that debate on an issue could only ended by cloture vote of generally 60% of the Senate.  Super majorities were frowned on by both Madison and Hamilton as one of the great weaknesses of the Constitutions ‘s ineffectual predecessor, the Articles of Confederation.  In any case, it was never used until 1837 and then rarely for our first two centuries.  The fact that you had to actually talk for endless hours if not days, probably made it an unattractive option.  One only has to see the worn down and haggard Jimmy Stewart in Frank Capra’s classic movie”Mr. Smith goes to Washington” to know what a filibuster was in those days.  It was only in the 1970s and later the rules changed to where the mere threat of filibuster brings about vote for cloture needing 60% “super majority” (60 out of the 100 senators).  The reasoning was either way the Senate could move on to other business rather than being tied up with endless speech making.

Of course, the truth is a simple majority of Senators could at anytime change the rules to get rid of the 60 vote threshold. In fact, the Democrats dumped it for the approval of Federal Judges below the Supreme Court towards the end of the Obama administration and recently the Republicans did the same for Supreme Court nominations. So why is it still in effect for other legislation? Its supporters claim it protects the rights of the minority but our constitution  provides ample protections to minorities.  The reality is it allows a tyranny of the minority.  The people elect a President and majorities in both house mainly because they want certain policies they advocated enacted.  As 60 vote Senate majorities are uncommon for either party, it in effect gives the minority veto power.  This is exactly why Madison and Hamilton were against “super majorities.”  The real explanation probably much simpler, it enhances the power of each individual  Senator.  Getting 10 more votes makes each vote far more dear.  Not only does the majority have to win over some of the opposition but any defections from their side are magnified.  Will Manchin cross the aisle?  Will Flake stay put? What power.  What publicity. Why do we even bother having elections?

On its face a primary seems to be a pillar of democracy.  We get to vote for candidates, what could possibly go wrong?  The reality is it may make governing much more difficult. The Constitution makes no mention of political parties much less primaries.  George Washington wasn’t a fan of political parties but they arise virtually everywhere  there are legislatures.  Even so few countries have adopted primaries for choosing their party candidates. Maybe they realized no organization much less a political party can be responsible if it has no control over its output. Primaries in the United Sates started during the progressive era (1890-1920).  Reformers pushed for grass-roots voting for direct votes for candidates, recalling politicians and laws. All have at best a mixed record.

The problem with this well intended idea has to do with so many elections is who votes and how often.  Presidential elections bring out our highest voter participation and then we go down hill from there.  Even well contested and publicized primaries generally attract a fraction of the votes of a Presidential General Election.  This allows the highly motivated on the further wings of the parties make the choices.  With the old “smoke-filled rooms” and party conventions the emphasis was on selecting candidates capable of winning over those middle voters in the General Election.  By contrast in today’s primaries are all about gaining a majority of those primary voting base voters.  After all, you have to be nominated in order even get to general election so your appeal is to the base rather than the uncommitted.  Seen as too moderate in your views and you risk being attacked from the left or right depending on your party. We have seen this scenario play out most recently in Alabama.  A likely winning candidate in the general election was defeated in the primary by a candidate from the more extreme side of the Republican Party who in turn was defeated in the general.  Senator Jeff Flake when confronted by an attack from his right flank didn’t even choose to run.  Legislators looking foremost to protect their flanks just aren’t going to be anxious to seen participating in the give and take in the middle.  Another unintended consequence of good intentions.

Though it doesn’t affect the Senate, gerrymandering or drawing districts to give a party an advantage in an election is another way politicians are forced to their more extreme wings.  Again this practice received a major impetuous in the modern era when it was determined that there should be minority majority districts.  Diversity was the goal. The problem is in order to have a black majority district you have overload it with blacks.   Blacks have an overwhelming propensity to vote Democratic so it creates a safe Democratic district.  Unfortunately by massing all of those Democratic voters in one district it leaves some districts overwhelmingly Republican.  In all these districts winning in the general is a given.  The only thing the candidate has to fear is a primary attack from the extreme wing.  Again, not much reason to compromise. Again minority districts aren’t mentioned in the constitution.

All these things , the filibuster, primaries and gerrymandering for minority representation were adopted in a more modern era than the days of our founding fathers with the very best of intentions but remember what the road to hell is paved with.  Change is not always for the best. Maybe it might be better to look to those who created the most successful representative republic the world has ever seen.  What they thought and did isn’t any big secret.  Madison’s notes of Debates in the Federal Convention of 1787 and the Federalist papers are readily available.  We just might step back and ask how would they handle our present dysfunction as they did with the abortive Articles of Confederation. That was really “the Art of the Deal.”


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