We Have Ceased to Be a Representative Government

04/18/2013 09:01 am ET | Updated Jun 18, 2013

Requiring a super-majority in the Senate means that a mini-minority is running the country. Giving every state two senators irrespective of population, by its very nature, gives greater representation to some and less to others. However, that discrepancy was much discussed and intended by the founding fathers. The founding fathers likewise envisioned majority rule in the Senate. Two provisions point to that conclusion. In the few instances in which a super-majority is required, the Constitution clearly specifies them. In all other instances, in the event of a tie, the vice-president is authorized to vote and break it -- again clearly contemplating majority rule. However, it is unlikely that the filibuster (requiring a super-majority for closure of debate) is unconstitutional, or if it were declared such, that there would be any way that the courts could enforce such a ruling. No, we are stuck with the filibuster, because the Constitution gives the Senate the right to make its own rules.

I have suggested in earlier posts that in my view those pledges made by elected representatives, such as the Norquist No Tax Pledge, may not violate the Constitution but may violate their oath of office because it is supposedly taken "without any mental reservation." With respect to the filibuster, the oath provides:

"I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God." (emphasis mine)

If a senator or group of senators consistently and persistently blocks all debates and votes on legislation proposed by the opposition party, and thus abuses the right to filibuster, does such conduct violate the commitment to "well and faithfully discharge the duties of the office"?

Although they eventually succumbed to public pressure, a number of senators were intent on preventing debate and a vote on proposed gun legislation. Apparently fear caused the Senate to carry the 60 vote rule beyond the filibuster stage and to the actual vote, and as a result, the legislation was defeated.

So we start with a Senate which by its very make-up is unrepresentative and then a small number (a limited minority) makes it even less so. With polls showing numbers like 80 to 90 percent of the country favoring background checks before gun sales, a small group of senators, fearful of passage, sought to thwart discussion and a vote on a subject of national interest.

But I do not want this discussion to be about guns or gun regulation. I suggest that although the filibuster is constitutional and has a valid role in the legislative process, its abuse should not be tolerated and that such abuse is a violation of a senator's oath to "well and faithfully discharge" his or her duties. Here again, assuming a court should agree with this hypothesis, it would have no remedy if the Senate persisted in its rule allowing filibusters. No -- the only relief lies in the ballot box. I do not doubt that there are those who cheer the intransigence of such senators, but silencing the majority and constantly thwarting the will of the people hardly symbolizes or furthers representative government. The conservatives are always criticizing "activist judges" for "thwarting the will of the majority," but apparently have no compunctions about doing so themselves.

The hesitancy to reduce the power of the filibuster is the view that the worm may turn, and the "in" party will become the "out" party and need the device for its own purposes. But forgotten in all of this political maneuvering is the nation, which needs and wants the passage of legislation which serves the public good rather than the obstructionists who serve the special interests. It is not the votes which I criticize; but the efforts to foreclose them. If a modified Golden Rule applied to the Senate over the years -- do unto others as they have done to you -- senators probably should just stay home and the people will not have to witness the demise of democracy and representative government.