Congressional Rule Changes Erode Rights of the Minority, Undermine Separation of Powers

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To fulfill its charge of protecting individual liberty, the federal government is broken up into individual branches, each of which has sole jurisdiction over a part of the law-making process. Most Americans are familiar with this concept of the separation of powers.

But this isn’t the only roadblock towards government overreach the Constitution’s Framers erected. There are also important divisions within the branches of the federal government that exist to prevent abuses of power. Since Congress, though it has no more authority than the other branches, has jurisdiction over the largest portion of the federal law-making process, nowhere are these internal restraints upon the power of the majority more important.

Though democratic government relies by necessity on the will of the majority to inform its actions, the Framers were nevertheless as fearful of an energetic majority, imbued with the energetic power of its own virtue, running roughshod over the rights of those in the minority as they were that an empowered few would gain control of the nation. 

In Federalist 51, James Madison offers the best remedy to the usurpation of government power by self-interested factions, whether they be in the majority or the minority:

“In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.”

Though the rules by which Congress operates don’t have their basis in the Constitution, which gives the House of Representatives and the Senate power to “determine the rules of its proceedings,” they have traditionally followed the principle outlined by Madison.

Minority voices in Congress have historically had the opportunity to register their objections to various legislative efforts being pursued by the majority of members.

But, over the past few decades, those opportunities have been rapidly diminishing. In 2013, under the direction of then-Senate Majority Leader Harry Reid, that body voted to “nuke” the filibuster rule for most presidential appointment nominees, lowering the number of votes needed to invoke cloture and end debate, from 60 votes to 51. In 2017, under the direction of Senate Majority Leader Mitch McConnell, the Senate voted to “nuke” the number of votes needed to invoked cloture and vote to accept judicial nominees—the only category exempt from Reid’s actions—from 60 votes to 51.

The filibuster for legislation still remains in the Senate, but in the past few years, there has been immense pressure to also eradicate that. Democrats in the minority have lobbied for the end to the end of the filibuster, as has President Trump. McConnell refused to bend to the pressure from either party, rightly naming the filibuster “crucial” to the Constitutional order. 

Those who argue the filibuster is an arcane procedure that has been used for unseemly political ends, such as the blocking of civil rights legislation, and stymies the will of the people are missing the point. First, the Senate is not the body through which the popular will is channeled. Constitutionally, it’s the body in which the states are supposed to be given equal representation. That’s hard to do if minority chances to voice objections are squelched.

Nor do majorities in Congress gain some sort of moral infallibility that stems from having a larger number of supporters than other political factions. Having the majority does not give a party carte blanche authority to implement their will. The voices of dissenters, who represent millions of constituents, need to be given voice in the legislative process, even if they’re ultimately unsuccessful and even if they’re a nuisance. Congress isn’t about convenience or efficiency; it’s specifically designed to throw up roadblocks to legislation, making sure that an impassioned majority can’t ram something down the country’s throat without thought to its consequences. The filibuster helps accomplish this end and helps make sure minority voices in Congress have a chance to be heard. 

The situation in the House of Representatives isn’t much more encouraging for minority voices. Shortly after the 117th Congress was sworn in, Democrats in the House passed a new rules package. It passed 217-206, with Republicans unanimously voting against it.

Their opposition was primarily rooted in a procedural tool called the “motion to recommit.” Essentially, this allowed minorities one final chance to amend legislation from the House floor before it was voted on. The Democratic rules package weakens the motion to recommit, requiring legislation to be returned to committee, a process that slows the legislative process and is therefore generally avoided by House members, even when they have objections.

But this isn’t the only step the House has taken in recent years to centralize control and limit chances for minorities to derail legislation. The House increasingly has operated under closed rules, which means amendments to legislation can’t be made from the House floor; they can only be made from the House Rules Committee.

The problem with this is the Rule Committee is controlled by the majority party. Without the motion to recommit—which was the only way minority members could debate and vote on amendments without going through the Rules Committee—minority voices have no absolute way to ensure their objections are given due consideration. 

Democrats don’t deserve all the blame for stymieing the ability of minority objections to be heard, however. During his tenure as Speaker of the House, Paul Ryan didn’t allow a single piece of legislation to be considered under open rules, which would have given members the opportunity to offer amendments from the floor.

Unlike the Senate, the House of Representatives is “the people’s house.” It’s the part of the federal government that serves as the most direct connection between the electorate and those who’ve been represented. That minority voices must depend on the whim of the majority party to be sure their objections and proposed changes to legislation are heard is unacceptable.

Madison was clear: for the legislature to be a proponent of freedom, rather than an impediment to it, its chambers needed division and debate. But rules changes in both chambers of Congress have worked to centralize power and give the majority party more control over the legislative process. This is detrimental to the separation of powers Madison took so much pain to erect. And it’s detrimental to the ability of the minority voices to be heard, a right sacrosanct in America and an important component of American government.

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