When the US House of Representatives passed HR 1, it addressed a series of comprehensive and desperately needed reforms that would strengthen voting rights and election security.
It would ban partisan gerrymandering, cut big bucks in politics, and establish a basic code of ethics for virtually all decision-makers in government.
The bill has the committed support of 50 senators and President Biden is ready to sign it. So what is the problem? Majority support in the Senate is not enough. A qualified majority of 60 votes is required to pass it. Less than 60 votes means it doesn’t pass.
This political reality is not found in the Constitution. The requirement comes from a century-old Senate rule that has become a weapon to strangle legislation by a minority of senators.
The drafters of the Constitution did not include a qualified majority requirement for the Senate to pass a law. They had seen how a similar requirement under the Articles of Confederation had prevented the government from doing almost anything. As Alexander Hamilton wrote in Federalist Paper 22, “What at first glance may seem like a cure, is, in reality, a poison.”
The filibuster destroys the energy of government and allows the whim of a minority to overrule the regular deliberations and decisions of that ruling majority.
Systematic obstruction emerged in the 19th century as a means of protecting the institution from slavery by a majority of abolitionist senators. From its beginnings until the mid-20th century, when segregationists like Sen. Strom Thurmond of South Carolina used filibuster in an attempt to kill several civil rights bills, the pattern is clear: he has been used regularly by those who reject inclusive democracy.
The relevance of the story is that the pattern continues. Systematic obstruction has not been a protection of the minority from the oppression of the majority. It has become an instrument of minority domination in virtually all forms of legislation, such as energy regulation, class actions, welfare reform, the Patriot Act amendment, defense credits, l estate tax, lobbying disclosure and national park protection. Systematic obstruction has in fact become a reality of minority rule in our national legislature.
It is also redundant protection in a system that already includes multiple veto points and the protection of minority opinions, including the very existence of our bicameral legislature, a Supreme Court and a presidential veto. The Senate itself protects minorities in its very design, which gives small states the same representation as large ones. The range of our basic government structure offers multiple protections to ensure that protection exists for the minority of our citizens. Now they rule us all effectively.
If HR1’s political reforms are not undertaken at the federal level, some states will continue to limit the ability to vote by the true majority of citizens. Furthermore, the claim that voting limitations will protect the integrity of elections is totally contradicted by the lack of evidence of corruption of current laws.
The Supreme Court should block these measures and protect the right to vote, but all too often under Chief Justice John Roberts it has done the opposite. In 2019 he refused to stop even the worst partisan gerrymanders, and in 2013 he struck at the heart of voting rights law, opening the door for a wave of voter crackdown laws that continue to grow. collapse. This is why federal law, like HR1, is the only real solution.
There have been many revisions to the Senate filibuster rule. In the 1970s, Congress created a loophole for expense and revenue bills to avoid filibustering, allowing such legislation to be passed by simple majority, a process known as reconciliation. . More recently, in 2013, Democrats eliminated filibustering appointments of federal lower court judges and executive officials.
The perverse result of all of this is that it is now easier to block any piece of legislation, and it is no longer valid for the minority to block an offending federal judge seeking life appointment. Any intellectual justification for filibuster has been dashed by the fact that it does not apply to the most important issues before the Senate.
The purpose of HR 1 is not to help one party over the other. It is about rebuilding and strengthening the foundations of American self-government and abolishing electoral restrictions erected for explicitly partisan gain. It is a federal law that would protect the entire sanctity of the basic electoral process. However, it relies on the filibuster killing block.
Don Tortorice is a former lawyer and professor in the Law School of the College of William and Mary.