Do We Really Need A U.S. Senate?

July 9, 2009

By Joe Rothstein
Editor, EINNEWS.COM

My most recent column suggesting that Senate Democrats should change Senate rules to get rid of the filibuster, or at least to curb its abuse, drew quite a flurry of comments. Traditionalists wondered what I was thinking, messing with such a sacred institution. Republicans, as expected, were furious that anyone would even consider taking away one of their last remaining levers of power.

But, since writing that column (...When Republicans Ruled The Senate It Was Bad for Democrats to Filibuster Judges; Now It's OK for Republicans to Filibuster Everything (July 6) I've discovered another piece on the subject, published at about the same time, by U.S. Court of Appeals Judge Richard Posner.

Posner is one of the most prolific jurists in the U.S., having authored 40 or so books on legal matters and economics. He generally tilts conservative---sometimes very conservative---in most matters. But read what he has to say in his July 5 blog (www.becker-posner-blog.com)

“The filibuster is an incomprehensible device of government. A supermajority rule, whether it is the rule of unanimity in criminal jury trials or the supermajority rules for amending the Constitution, makes sense when the cost of a false positive (convicting an innocent person, or making an unsound amendment to the Constitution) substantially exceeds the cost of a false negative. But it is hard to see the applicability of that principle to Senate voting, given the other barriers to enacting legislation.”

As Posner points out:

“I am not sure the filibuster-proof majority is a boon to the Democratic Party and program. Because if now the Administration's legislative program fails of passage or is mutilated in the course of passage, it will not be possible to blame an obstructive minority consisting of filibustering Republican windbags.

“Furthermore, the new voting alignment increases the power of every Democratic senator, by threatening to align himself with the 40 Republicans in a crucial legislative showdown, to thwart the Administration's program or, more realistically, to insist on what may be costly compensation in the form of an amendment favoring an interest group that is important to his electoral prospects. Indeed, each of the Democratic senators now has an incentive to play the hold-out in order to extract concessions, in any situation in which Republicans need only one or a very few Democratic defectors in order to defeat an Administration bill.”

Posner writes that when the founding fathers created a U.S. Senate they envisioned appointed members, selected by individual state legislatures. These would be distinguished citizens who would have sufficient time during their six year terms to develop expertise on various subjects.

But a constitutional amendment turned appointed senators into elected ones. The need for senators to raise millions of dollars to win and keep their posts means that they spend considerable time tracking down campaign contributions. And since there are so few senators, compared with members of the U.S. House, they are stretched much thinner in terms of developing the same level of expertise as their house counterparts.

In other words, it's an entirely different U.S. Senate than we started with. Yet, the old customs of allowing individual senators to hold up appointments and legislative action still remain. And, with the abuse of the filibuster, the Republicans have now turned the Senate into a supermajority body on almost every action of substance.

Case in point: The other day President Obama announced agreement on a new treaty with the Russians to cut back the number of nuclear weapons in each nation's arsenal. That agreement was immediately followed by this headline in The Hill newspaper: “Nukes treaty gives GOP weapon on missile defense.” As with virtually every issue these days, even a treaty to step back further from annihilation of the human species by nuclear weapons is seen, first and foremost, from the standpoint of partisan political advantage.

It's clear to just about everyone, both inside and outside of government, that official Washington has clogged arteries when it comes to dealing with the most pressing issues of our times. A dangerous condition given the central role the U.S. plays in world economics, armaments, trade, agriculture and other globally essential policy areas.

In my July 6 column I suggested elimination of the filibuster as a way to help unclog the system. Many readers felt this was a radical suggestion. But Judge Posner's solution is even more radical. Here it is:

“Since the Senate is very large and senators are directly elected, it is unclear why there is a Senate--that is, why the federal legislature is bicameral. Bicameralism increases the transaction costs of enacting legislation, which can be good or bad (it is bad in national emergencies, as in the financial crisis of last September), and it also increases the cost of repeal, which on balance probably is bad, arbitrarily enhances the political power of sparsely populated states, results in many unprincipled and confusing legislative compromises, and diffuses responsibility for legislation. It is not clear that on balance we are better off with the bicameral system.”

Get rid of the Senate entirely? Hmmmm. I hadn't considered that. But the more I think about it…….

(Joe Rothstein can be contacted at joe@einnews.com)