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Judge H. Lee Sarokin

Judge H. Lee Sarokin

Posted: November 5, 2009 12:08 PM

The 60 Vote Rule - What's Worse: An Oppressive Majority or an Obstructionist Minority?

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In our family when there were important decisions to be made, such as where to eat or what movie to see (very infrequent events in those days), we were told "the majority rules." I expect that the average citizen thinks that Congress does and should act in the same fashion. As early as grade school we had a pretty fair understanding that except when it came to overriding a presidential veto, the House and Senate operated under majority rule. Later in our education, we learned that a supermajority was also required in the Senate in respect to impeachment, treaties, expulsion of members and proposing constitutional amendments, and more recently when there is need for an acting president.

But we hear every day, to the undoubted surprise of many, that health care reform, which according to polls is wanted by a supermajority of the country, requires a supermajority in the Senate. A simple majority just won't do it. Why is that and is it a good or bad thing for the country? The Constitution provides the circumstances under which more than a majority is required, and this type of legislation is definitely not on the list. Furthermore, the Constitution provides that the Vice-President can break a tie--clearly indicating an intention by the Founders that a majority should decide matters in the Senate except in those specific instances enumerated in the Constitution.

But strangely enough, the requirement for a supermajority comes indirectly from the Constitution itself, which permits each chamber to fix its own procedural rules. The Senate now has a rule which can close debate by a three-fifths vote of all Senators or 60 votes. The rule and its predecessors sprung from the principle that absent a cloture rule, a senator could speak indefinitely--filibuster in order to defeat legislation.

If a judge declares a statute invalid, conservatives frequently complain that such judges are "liberal activists, thwarting the will of the majority," but "thwarting" apparently is in the eyes of the beholder. Under the current rule, as in the case of health care, a minority can thwart the will of the majority, even a majority of 59%--both in the country and the Senate (although the percentage in the nation favoring such legislation may be even higher). Any political party that wishes to change this rule in order to permit the adoption of particular legislation or confirmation of a particular nominee by a majority vote has to bear in mind that one day it will be in the minority and might very well regret the unavailability of this obstructionist weapon.

But how does the country fare in all of this? For a long time in the history of this country the majority favored, or at least accepted, slavery and segregation. So the majority is not always right or on the right side. On the other hand, this power wielded by a minority can bring all significant legislation to a halt. The courts are there to check the majority when it exceeds the limits prescribed by the Constitution. But what of those instances in which the majority seeks to enact constitutional legislation which a formidable, organized minority opposes? Does the Senate rule impede or further our democracy?

In my view a supermajority should not be required to bring matters to the floor for debate. But when it comes to adopting legislation or confirming a nominee, I am uncertain and ambivalent. In view of that uncertainty and ambivalence, I look forward to your comments. I leave you with these two profound but conflicting quotes:

"A majority, held in restraint by constitutional checks and limitations, and always changing easily, with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people." --Abraham Lincoln

"It is the besetting vice of democracies to substitute public opinion for law. This is the usual form in which the masses of men exhibit their tyranny." --James Fenimore Cooper