Note: This is the second of a series on how to reform the federal government without amending the Constitution.
A single person now prevents Congress from taking almost any action, including even to consider a bill or a nomination.
President Trump? Another constitutional leader? No, a mere party official – the Majority Leader in the U.S. Senate – has the absolute authority to set the national agenda. If he (there’s never been a woman) decides to keep any matter from coming before the Senate, it’s dead.
By himself, the Majority Leader can kill any measure, even proposed by the president, especially when the president leads the opposing party.
These days, Kentucky GOP Sen. Mitch McConnell wields that power, given to him by the Republican Senate majority. When voters elect Republican senators, including Maine’s Susan Collins, who in turn choose him, they indirectly pick the most powerful person in the federal legislative process.
Can anything be done about this dictatorial system, not foreseen when the Constitution was drafted?
Of course, it could. If senators were bold enough to strip the majority leader of power, a Senate majority could set its own agenda.
But that would give rise to an equally serious problem. Each state, no matter its population, has two votes in the Senate. It would be mathematically possible for senators representing states with as little at 18 percent of the total U.S. population to control the Senate and set its agenda.
Even without that extreme case, representatives of a minority of the people could always be in charge of the Senate. In fact, simple majority votes are often decided by senators representing less than half of the population.
Originally, the House was supposed to represent the people and the Senate was supposed to represent states. But the Constitution was amended, replacing state legislatures’ election of senators by popular vote. At that point, a method had to be found to prevent minority rule.
“Cloture” was invented to require an extra-large majority to end debate before final Senate votes. It virtually assures that the supermajority of 60 out of the 100 senators will represent a popular majority. And it won’t allow the majority party to steamroller the minority party, insurance against their roles being reversed later.
That works, so long as the majority leader wants it. McConnell decided he wanted to ensure conservatives got their court picks. Confirming Supreme Court justices was changed to require only a simple majority. Confirmation votes became completely political and increased the possibility of minority rule.
Previously, McConnell had prevented the Senate from even considering a Supreme Court nominee of President Obama. So, he used his considerable power to prevent consideration of one court nominee while allowing two others to be confirmed for the first time by simple majorities. Opposition Democrats shrugged off his actions, accepting the system.
Just this week, McConnell blocked election security bills, including one that would have required backup paper ballots to blunt computer vote tampering.
The power exercised by the majority leader is far removed from democracy and open government in America. Does he have too much power for one person in this country?
If the Senate is to take control from McConnell or any majority leader, it must find a new, fair and democratic voting system. Because the Constitution requires only a simple majority, the way to control runaway minority government remains overcoming a higher procedural hurdle before that vote.
The solution can be found in reforming the cloture rule. That can be done in a way that is both consistent with the democratic spirit of the Constitution and assures true majority rule.
The system that McConnell has installed for confirming federal judges should apply to all votes. Debate should be ended by a simple majority – but with one essential condition.
While each issue would have to pass a cloture vote by simple majority, that majority would have to include senators representing a majority of the population, according to the latest census. When the two senators from the same state disagree, its population should be divided with half attributed to each.
This fair, new rule would be quite similar to the traditional rule. And, just as the cloture rule has been adopted and amended over time, this revised procedure could be included in Senate rules by a simple majority of the Senate, when it adopts them every two years.
This system is called qualified majority voting. It is used today in the European Union, and it works. Reforming Senate voting and toppling control by a single person could be easily done. One-person rule in the American government would end.
Qualified majority voting would greatly increase the likelihood that votes would depend on support by members of both parties. Using it in the Senate would force compromise and get decisions made.