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Judd Gregg: Rule shift destroys the Senate

When James Madison and his colleagues gathered at Philadelphia in 1789 to set up our government, 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 belief that the English government had acted in a tyrannical way.

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Madison wanted to ensure that the new American government could never become so tyrannical and that the majority could not overwhelm the rights and freedom of the minority in this new nation. The way he planned to accomplish this was through a government of checks and balances.

Over time, the Senate became the keeper of the flame of minority rights in the system.

The reason this occurred was because the rules and practices of the Senate were vastly different from those of the House. In the Senate, each member as an individual, and the minority if it acted as group, had dramatic influence and power.

The Senate became the place of debate and of amendments. Bills that came to the floor of the Senate were available to all senators to amend in any way they deemed appropriate, for the most part. And if the minority wished to act as a unit and could muster 41 votes, it could filibuster almost anything and, if not stop it, at least slow it down for further consideration.

This inserted the minority into the process, no matter who was president or which party controlled the House. It was what Madison wanted. It was healthy for a nation with the size and complexity of ours to be assured that at one place in the process of governance, either a lone voice could make a point he or she deemed important, or an entire party representing the minority in the nation could make such a point.

This all ended recently when the Democratic membership of the Senate decided to exercise the single worst abuse of power in more than two hundred years of our constitutional democracy by changing the rules of the Senate so that 51 members of the Senate can now control the body in a unilateral and dictatorial manner.

The process had been building over the last few years. The Democratic Party’s leadership in the Senate had exploded the use of a procedure known as “filling the tree,” which, as a practical matter, cut off the historic rights of individual senators to offer whatever amendment they deemed appropriate to bills brought to the floor of the Senate and ended the power of the minority to offer amendments that would be seen as improving legislation.

“Filling the Tree” has the practical effect of turning the debate and amendment process of the Senate into a carbon copy of the House, where the minority has no rights except for those granted it by the majority.

Its excessive use by the majority leader in the Senate over the last few years was the result of the newer Democratic members not wanting to take the “tough” votes that were being brought forward by the minority. If one is unwilling to take politically difficult votes, it calls into question the reason for being in the Senate. After all, that is why the Senate has six-year terms. But that is what had evolved.

Now the majority of the Senate is setting forth absolute majority rule by allowing the rules to be changed using a simple majority instead of the historically accepted requirement of 67 votes. And of course the first rule changed is to kill the most important right of the minority after the right to offer amendments, which is the right to talk.

It is impossible to overstate the long-term damage this has done to our American form of governance. The destruction of the Senate as the institution that stands for the purposes and voice of the minority in our society will reverberate throughout our nation.

The intense partisanship and division which is already so debilitating to our government will become much more extreme the next time the House and the Senate are controlled by the same party. People will have no place to turn for a fair hearing of their views, if they do not happen to be fortunate enough to be identified with those who are in the majority.

Balanced and thoughtful legislation and, for that matter, debate, will be difficult to promote if the majority does not want to hear of it.

It is truly a step down the road to autocracy.

Those who so foolishly embraced this because they were seduced by the opportunities of power, which it passed to them, or because they were so ill-informed as to the importance of the role of the Senate, will someday find that abuse of power is not a one-way street.

At that point, it will be will past too late for the democracy of Madison.

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. He is the CEO of SIFMA, a financial industry lobbying group.