By Judd Gregg - 10/17/11 09:15 AM EDT
When James Madison and his colleagues gathered at Philadelphia to write the constitution in 1787, they had one overriding concern. They had just come through a terrible and all-consuming war with the mother country. The conflict had been fueled in large part by a feeling that the English government had acted in a tyrannical way in the manner that it had treated the colonies.
Madison wanted to ensure that the new American government could never become so tyrannical and that the majority could not overwhelm the rights and freedoms of the minority in the new nation. An essential element of accomplishing this goal was to set up a government of checks and balances.
Over time, the Senate has become the keeper of the flame in this regard. It is the institution that has most evolved into the role of protecting the rights and freedoms of the minority, especially as they relate to the legislative branch.
The Senate is the place where the capacity to debate and amend proposed legislation is virtually limitless. Bills that come to the floor of the Senate are available to all members of the Senate to be amended in any way they deem appropriate — assuming of course that they can muster the votes to pass the amendment.
This is the way it is supposed to be. This is the way it used to be.
But with the advent of Democratic control of the Senate under the leadership of Sen. Harry Reid (Nev.) this has changed fundamentally. There is no longer an open amendment process and not even a great deal of open debate.
This has been accomplished through doing something called “filling the tree,” which allows the majority leader to shut down and control the amendment process. “Filling the tree” has always been available to a majority but it has been historically used with great discretion. It is now an everyday event, a weapon wielded with autocratic excess.
The use of this procedure lowers a Senate floor debate to the same status as a House debate. The majority in this way cuts off the rights and amendment privileges of individual senators — rights that have been at the center of Senate procedures for a couple of centuries.
As if this attack on the Senate’s constitutional role were not enough, now the Democratic majority is trying to destroy the most crucial right of the minority with its attack on the filibuster rules.
The filibuster is at the center of the checks and balances structure. It is what keeps a bare majority from abusing the minority. Because it requires that all controversial laws must be passed with a supermajority of 60, it guarantees that in most times — that is, when neither party has 60 votes in the Senate — the minority’s voice will be heard.
Protecting the minority from the arbitrary abuse of the majority is absolutely critical to maintaining the freedoms that give our nation its great strength. Now one extraordinarily important pillar of that protection, the United States Senate, is being hollowed out.
Why did this attack on our system of governance and rights, especially those that protect the minority in our society, occur? Simply because Democratic senators do not want to take tough votes as the next election looms.
What a sad pass we have come to when the leaders of the Democratic Party and its rank-and-file members are willing to trade away such an important element of the freedoms that define our nation in order that they, as individuals, do not have to do their job and cast difficult votes.
Unfortunately, this genie is now out of the bottle. The powers and prerogatives of individual senators and the minority have been fundamentally, and most likely permanently, harmed and muted. This is not a good thing for the Senate. It might as well just disband and assimilate itself into the House, for that is what it has become.
It has even worse implications for the nation. Our freedoms — buttressed by the governmental structure that Madison and his associates passed down to us to protect and preserve — have been gravely eroded.
Judd Gregg is a former governor and three-term senator from New Hampshire who served as chairman and ranking member of the Senate Budget Committee and also as ranking member of the Senate Appropriations Foreign Operations subcommittee.