2009 retrospective: Constitutional decay. Senate category.

If you thought democratic (small d) government meant majority rule, 2009 revealed all too painfully how very far our Constitutional system strays from that hope. James Fallows describes the problem gracefully and dispassionately:

The most charitable statement of the problem is that the American government is a victim of its own success. It has survived in more or less recognizable form over more than two centuries -- long enough to become mismatched to the real circumstances of the nation.

I could point to all sorts cracks in the branches -- legislative, executive and judicial -- and in the federal scheme itself, but for today, let's deal with the Senate where the health care "reform" process has made two faults of that body all too visible.

• The distribution of Senate power is strongly tilted against most of us. I'm old enough to remember when the principle of "one person, one vote" was imposed on state legislatures and the House of Representatives by Supreme Court decisions in the 1960s. Racists and entrenched political elites howled. Previously, all too often, legislative districts gave disproportionate representation to large rural areas while slighting geographically compact cities with far larger populations. In that era, outside the South, those cities were often much more black and brown than the rest of states, compounding the inequity in who got represented among lawmakers. The new rule, gradually over decades, changed the balance racially and economically. The Senate was immune from "one person, one vote" because it is written right in the Constitution that each state gets two Senators. As a result, we are living with a situation in which states that include 12 percent of the national population can elect 41 Senators, enough because of the other presenting dysfunction in the body to dictate to the rest of us.

• A requirement for a 60 vote majority has become the norm in Senate procedure.This undemocratic development is not a constitutional bug; it is a feature that Senators have given themselves by choosing and hanging on to rules and customs of procedure. The filibuster rule did not always constrain all Senate business; it was a rarely used, oppositional last resort. But Senators have let this tactic and their accustomed "courtesies" dictate their entire current process. As a result we are seeing a determined minority hamstring an unusually large majority and empower the outliers within that majority to make outrageous demands on most of us. It's ugly.

Can anything be done to make the Senate more democratic?

Maybe. It's certainly worth understanding the need and working toward it. Twice in the history of this intentionally undemocratic body, popular pressures have forced some reforms.
In the original version of the Constitution, Senators weren't even elected by the people. State legislators had the job. According to even the Senate's own history,the set-up led to an obviously corrupt result; state-level big business competed to buy enough legislators to buy a compliant Senator. Political conflicts in state legislatures sometimes meant that no Senator was sent to Washington for long periods. Pressure for reform began in earnest in the 1870s, though Senators and the political parties treated direct election as a fringe idea. At the beginning of the 20th Century, portraying Senators as bought and paid for shills for fat cats became common. Media of the day made being a Senator synonymous with being a crook, an exploiter of ordinary people. In 1913, states ratified the 17th amendment which provides for the direct election of Senators. A bad arrangement got a little more democratic.
The filibuster -- originally the right to talk against a measure forever, now a simple threat to use 41 votes to prevent legislative action -- has been a procedural rule in the Senate from the get-go. But it is not law -- it's constraints are a choice that Senators put into their rules every two years. Whoever is "in" (the majority) goes along because they fear someday they might be "out." For many years, the filibuster and the inability of other Senators to "impose cloture" (limit debate) mostly attracted attention as the means by which Southern segregationists prevented national civil rights legislation. This country never passed an anti-lynching law because of the Senate filibuster. Until 1975 when a post-Watergate Democratic majority changed the rules, ending a filibuster required two-thirds for closing off debate (66 votes); in that year the number was cut to three-fifths (60) votes. How did this get done? The filibuster had become synonymous with racist stonewalling and with the discredited Nixon's political trickery, so a long-sought reform, though not abolition, became possible.

What can we take from this history?

Several lessons seem apparent:

• Reform takes time. Better get going on it.

• Because reform takes time, there will probably be a lot of ideas about how to make the Senate more democratic. That's okay. I lean toward supporting what look like tweaks rather than grand schemes of constitutional renewal, but I might be argued into more.

• Reforms followed periods of populist unrest (among 19th century workers and farmers; the civil rights and anti-Vietnam eras) even when the Senate was not the focus of alienation. We may need another such period and if this Recession is a double dip event, we could get one.

• Historically, the Senate's anti-democratic aspects have been vulnerable when brought into the light. Mostly people don't know or want to know what their elected representatives are doing. But when popular understanding has built that Senators are crooks, up-for-sale, racists, obstructionists, they have moved in the past. Contemporary communications technology offers highly democratic opportunities to shine the light on this bunch of anti-democratic, egotistical elitists. Let's go for it (and applaud any that will work for reform, of course.)

Most everyone else in the blogosphere who indulged in 2009 retrospectives got them done between Christmas and New Years -- I went to Patagonia. So I'm going to allow myself a few such items over the first few weeks of this year.