We have never been a nation of majority rule

There seems to be this notion that we’re a democracy. It gets taught to schoolkids and passed from parents to children. It is discussed in coffee houses, bars and even churches.

It is a lie. We are not a democracy. We never have been. And I pray to God we never will be.

But if a handful of congressmen get their way, we’ll be inching in that direction. Four Democrats from the House of Representatives — with the help of a nonpartisan outfit named Common Cause — have filed suit in US District Court to end the Senate practice known as the filibuster, saying it usurps the “principle of majority rule.”

A filibuster is a tool used by the minority party in the Senate to refuse to allow a bill to be voted on — stating that it still needs debated — unless 60 members of the Senate vote to end discussions (cloture) and vote on the bill at hand. In essence, the minority party (with 40 or more members) can prevent any measure from being voted on as long as they keep debating said issue.

I get what the congressmen are trying to do and it’s admirable in a sense. They feel that the wheels of government have ground to a halt because of a tendency to abuse the filibuster and they want to grease those wheels with some democracy.

To advance their point, there were 16 filibusters from 1840 to 1900. That’s one every four years. There was about one per year in the 40s, 50s, 60s and 70s. And then the numbers started rising. In 2009 and 2010 there were 130.

It’s worth noting that prior to 1917, there was no process to stop a filibuster. And until 1975, a cloture vote required two-thirds of senators, seven more than today.

It would seem reasonable to assume that the process of the filibuster is being used more than “intended.” What was once a part of the system of checks and balances has become a burdensome process preventing any real progress from occurring.

Except that assumption would also assume that “progress” is a good thing and that the “principle of majority rule” is a true tenet upon which this nation was founded. But as I’ve already said, it wasn’t.

“Democracy must be something more than two wolves and a sheep voting on what to have for dinner,” according to the author James Bovard.

And that’s precisely why the filibuster needs to remain in effect. The sheep need protection from the wolves.

Of course, in years past, the Senate was a much more thoughtful and responsible body where moderates from both parties outnumbered the radicals and everyone worked together to compose bills they knew would pass. In fact, the Senate was designed to be just that. That’s why there’s only 100 of them. And that’s why (originally) they were appointed by their respective states, chosen not for party affiliation but for their ability to work together and come up with reasonable solutions to the nation’s ills.

In this manner, the Senate also was designed to temper the more whimsical tones of the House. But the 17th Amendment screwed that all up and gave the people to power to directly elect senators.

The reason filibusters have increased exponentially over the past few decades is because the bills put forth in the Senate have become less and less reasonable and more and more partisan. It could actually be offered, then, that the filibuster’s design is working exactly as intended, preventing a tyranny of the majority.

Which is exactly why we don’t live under “majority rule,” but rather a complex design created by our founders to protect us from ourselves. Because in the end, we’re both wolves and sheep.

Scott Leffler is a self-proclaimed Constitutional scholar. He’s also a ginger. But we don’t talk about that. Follow his Tweets @scottleffler.

Congress really is the opposite of progress

No news may or may not be good news … but I'm of the firm belief that nothing getting done in our nation's capital is a great thing.

The other day I read story after story about Republicans in Washington abusing the filibuster to prevent things from getting accomplished. This was – of course – portrayed from the Democrats point of view and assumed that what they wanted to accomplish was a good thing.

Yes, it's true, sometimes government does things right. Every so often they enact laws that make our lives better, easier, more fulfilled, or – most often – safer. But in between all the good laws they pass, they enact a whole lot of unnecessary dumb ones.

My world view tells me that government is a necessary evil, making it both necessary … and evil. Government isn't intentionally evil, I don't think. At least I choose to believe it's not intentionally evil. But the folks running the place need to constantly be “doing something” in order to justify their existence.

It's not all that different from your job, I'd imagine. When the boss is around, you tend to act busy and look like you're doing something, even when you don't really have anything important to do. The reason for this is to make sure that at the next round of budget cuts and layoffs, you get to stick around.

When you're looking busy at work, maybe you keep a fake spreadsheet open, plugging random numbers into it. Maybe you sweep the same area of your shop repeatedly. Maybe you wipe down the cash register over and over. Whatever it is you do, it's probably not harmful to the company.

When congress is looking busy at work, they're enacting feel good legislation that further erodes our freedoms. Now, this may sound like hyperbole to you, but it's true. If you consider that the more you can do, the more free you are, then every law is a restriction on our freedom even if that law is “good for you.”

Also, when you consider that every bill in Congress has a cost associated with it, the more Congress “looks busy,” the more money you're spending on them.

The best thing we've got going for us is that Congress is split into two camps, each wanting the other side to fail at everything. So Democrat's busy work is poo pooed by the Republicans, and vice versa.

One of the most helpful things in preventing the other side from accomplishing thing is the Senate filibuster. See, we are – for the most part - a “majority rule” nation, but there are government procedures that allow the upper body of Congress to require us to be a “60 percent rule” nation. The best thing about that is that it's usually impossible to get 60 senators to agree on anything, meaning nothing gets done.

So when I hear either party complain about “filibuster abuse,” it sounds to me like, “hey they won't let us do whatever we want without proper checks and balances.” And either party preventing the other party from running roughshod over the people can only be a good thing, in my humble but honest opinion. 

More on Gillibrand ...

A funny thing happens when you publicly criticize a sitting member of Congress. They notice.

Last week I told you I had all but forgotten New York's junior senator Kirsten Gillibrand. Since that column ran, her press office has determined that I will never forget the senator again. Three times last Tuesday, I got press releases from her office, followed by two on Thursday and another four on Friday.

Of course, the entire lot of press releases amounted to very little, in my opinion. And frankly, if they were trying to tell me she was worthwhile, a carefully crafted email saying, “Hey, Scott, Senator Gillibrand has done all sorts of good stuff. Here's some examples,” would have gone a lot further.

A quick review of those press releases shows that one is a feel-good measure about tax credits. Two were feel-good puff pieces about the first lady's campaign to fight childhood obesity. One was about her military academy nominations. Three were about the anniversary of flight 3407. One applauded the potential end of “dont ask, don't
tell.” And the last was her public schedule.

I have good working relationships with people in the offices of many members of the local congressional delegation; Congressman Lee, Congresswoman Slaughter, Congressman Higgins and Senator Schumer. And as a journalist, I'd like to have a good working relationship with Senator Gillibrand's office. That probably would have been easier were it not for my shot across their bow last week.

But, hey. I call 'em like I see 'em. And I don't think the junior senator has what it takes to hold the high-profile job in the US Senate.

Last Thursday, my friend Alan Bedenko, who writes under the moniker of Buffalo Pundit for WNYMedia.net asked, “Can any Democrat around here name for me something – anything – that would render Kirsten Gillibrand unworthy of re-election?” He went on to question the campaign of Harold Ford, who is considering a primary against Gillibrand. While I don't disagree with Alan's questioning of Ford, I do feel the need to turn the original question around on him. “Can you name me something – anything – that would render Kirsten Gillibrand worthy of re-election?”

Alan goes on to say that Gillibrand “comes from an upstate background and arguably has a better understanding of – and experience with – upstate issues.”

That was enough for me when she was first appointed. I keenly recall thinking that she and I shared several ideals. But that only makes her equally qualified as I am to hold her job. I may have an ego, but I'm not so full of myself as to think I'd make a good US Senator.

My big flaw with Alan's thought process is that we should keep her cause she hasn't done anything wrong. The absense of wrong does not make something right. We should strive for something more – something better – than “well, they didn't screw up too bad.”

A certain Buffalo radio station used to have a liner that went like this: “Let's face it. Buffalo radio sucks. But we suck less.” Is that what we're going for?

If you're content with mediocrity, then, by all means, keep Gillibrand in office and don't consider anyone who might run against her. Better yet, if you're content with mediocrity, get out of New York State so that those of us who aren't can do something to fix it.

Spitzer: What we need

You can't always get what you want. But if you try sometimes, you might just find you get what you need.

Meanwhile, here in New York, we often get what we want. Only to find out what we wanted was not what we needed.

I read recently that former state attorney general and disgraced governor Eliot Spitzer was considering a run for the US Senate. While I'm not particularly keen on the idea of our junior senator being the guy lovingly referred to as “Client number nine,” after looking over the other possible contenders, I'm thinking he might be what we need.

Before reading that Spitzer was considering running against Senator Kirsten Gillibrand for the senate seat she was appointed to, I kind of forgot that Kirsten Gillibrand even existed. That's a bad sign for a US Senator. I mean, considering I can probably name most of the 98 senators who represent the other states, having to think about one of our own is a sign that she's not really a voice to be reckoned with, ya know?

I hate to admit it, but I kind of miss the one-two punch of Senators Chuck Schumer and Hillary Clinton. Sure, she was a carpetbagger who only wanted to use her senate seat as a step in her quest for the presidency, but her profile and demeanor meant more attention for New York.

Think of United States senators in the way they were envisioned prior to the ratification of the 17th Amendment. They were all appointed to act as ambassadors for the state, working on behalf of the state government to express the state's view in Washington. They needed to be strong, charismatic representatives to get their states what they needed.

With the passing of the 17th, the senate is now elected by the people and their role has changed. But most good senators are still the strong charismatic ones, acting as ambassadors rather than the proxies that one of my least favorite amendments has made them into.

Gillibrand may make a good proxy. But she does not make for a good ambassador. Spitzer would.

Some might say that his prostitution scandal would render him impotent when it comes to being able to get things done in the senate. I disagree. Yeah, his image is tainted. Sure he has an uphill battle to regain the respect of the world. But no matter what tawdry details of his sex life you may know, he's still Eliot friggin' Spitzer, a force to be reckoned with. And the school-yard style teasing in the senate would die down quickly as the steamroller reminded his colleagues why he gets things done.

It can probably be said that a senators effectiveness is directly proportional to how well his or her name resonates in the state's he or she doesn't represent. If I can't remember Gillibrand, what are the odds that anyone from Kansas can?

Yes, electing Spitzer would officially make us the laughingstock of the country temporarily. It's not something we want. But when the laughing dies down and Spitzer gets to work, the new one-two punch of Spitzer and Schumer would be exactly what we need.