A Modest Proposal: Senate Reform
by Gabriel Conroy
Hear Ye, Hear Ye! In an attempt to create real, lasting, and quality reform to the United Stated Senate — and therefore these United States of America — the Right and Honorable Gabriel Conroy does hereby propose the following Amendment to the Constitution:
Section 1: All bills shall originate in the House of Representatives, but the Senate may concur in any bill passed by the House of Representatives. If the Senate concur, the bill shall be presented to the President for his or her approval or disapproval, according to the rules and limitations prescribed in the first article of this Constitution. If the Senate do not concur after one hundred eighty days shall have elapsed, the bill shall be referred again to the House of Representatives. If the House of Representatives shall approve said bill, without amendment, before three hundred sixty five days shall have elapsed from its original passage by that house, the bill shall be presented to the President for his or her approval or disapproval, according to the rules and limitations prescribed in the seventh section of the first article. But nothing in this article or in any article, of the constitution shall be so construed as to permit the Senate to propose amendments to any bill.
Section 2: The Senate shall have power to remove any officer of the United States, appointed by the President, if three-fifths of the Senate concur in such removal, provided that nothing in this article or in any article, of the constitution be so construed as to deny the term of service during Good Behavior of Judges, both of the supreme and inferior courts, as provided in the third article of this Constitution; and provided also that nothing in this article or in any article, of the Constitution be so construed as to deny the power of impeachment to the House of Representatives or to deny the power to try all impeachments to the Senate, according to the rules prescribed in this Constitution for impeachments and trying all impeachments.
Section 3: The Senate shall have power to nullify any executive order or any order issued by the President when engaged in his or her official duties as President, or any order of any officer of the United States, appointed by and directly responsible to the President, if three-fifths of the Senate concur in such nullification, provided, however, that nothing in this article shall be so construed as to permit the Senate to nullify the decision of any Judge, of the supreme court or any inferior courts, when done in the exercise of his or her office; and provided, further, that the failure by the President to obey the Senate’s order for nullification shall be considered a high crime or misdemeanor against the United States.
Discus…
I’m in favor, but you’re missing an opportunity to limit Supreme Court justices to 18-year terms in Section 2. That way, each president can be assured of picking at least 2 (4 if they’re re-elected), but there’s less of an incentive to pick ideologically reliable 40-year-olds.Report
Concur.Report
@dan-miller
I agree. I’ve heard that plan before and it sounds like a good one, perhaps with a guaranteed vote on judicial nominees, and not just scotus ones.Report
I’d put in a required vote on all Presidential nominees — give them, say, six months. If no vote occurs in six months, the nominee is automatically appointed.
Six months is sufficient time to vet them and bring them up for a vote, and I feel Congress shouldn’t be allowed to block nominees through inaction.Report
I am inclined to agree, though I might trade this for significantly reducing the number of appointees who must be confirmed.Report
I’m open to ideas. I just think that, by and large, appointees are a Presidential power and the Senate has a duty (“advise and consent”) which they are, bluntly, neglecting.
Honestly, I’d probably say lose the Senate for any position that is linked to the President’s term (Cabinet officials, for instance). Lengthen the period the Senate has to act for lifetime appointments (SCOTUS, basically), and leave it for six months for anything else.
Then again, I’d ditch the SCOTUS life-time stuff for, say, lengthy terms (longer than 8 years, at a minimum) . Chosen by the President, approved by the Senate — and then with a straight-up renewal vote in the Senate after the first term and limited to two terms.Report
@morat20
After the fact, I thought about putting in a “shall vote on nominees” clause, but I would have put the window much narrower. Say, 30 days. Maybe that’s too little, however. One reason I would put a lesser time for most officers is that the Senate under my plan would be able to remove them for no confidence. Confirmation of judges, of course, might have to work differently, maybe with a longer window.Report
Section One provides that all legislation of all sorts must originate in the House. Thus, no Senator may propose a bill at all. (Presumably, if a Senator has an idea for legislation, that Senator may find a friendly member of the House to propose it on her behalf.) Rather the Senate has 180 days to concur with a House Bill, and if it fails to so concur, the same House than has 365 days to re-adopt it.
1. May the Senate propose an amendment to a bill passed out of the House? Or does “concur” mean a simple up-and-down vote on only the language passed out of the House?
2. Each House lasts only two years; if the House adopts a bill in the second half of its second year of existence, then the Senate basically holds a pocket veto, since it will never reach the President nor will the House get an opportunity to override the Senate’s failure to act. Maybe that’s not a bad thing, but we should be aware that this is a pretty massive pocket veto.
Which brings me to…
3. Let’s say the President issues Executive Order No. 43210, providing that all grummishes greater than 250 pounds must natter, and factually-detailed regulations controlling the means by which said nattering is to occur. But then the Senate then by two-thirds vote nullifies Executive Order No. 43210. And, worse, the new Grummish Act fails in the House. Now we have a problem: there is no means by which grummishes may be nattered, and the President will surely hesitate to proffer any alternative interim means by which grummishes will be nattered, lest she put herself in danger of impeachment at the hands of her political enemies (who perhaps have set up this very trap for her), since new Executive Order No. 43211 is a transparent attempt to evade the effects of the Senate’s nullification of Executive Order No. 43210. The result is that we’ll have either a President hobbled by impeachment proceedings, or completely unnattered grummishes! Or debatably worse than this vision of anarchy, grummishes nattered one way in Iowa and a different way in Minnesota, with interstate regulatory chaos resulting.Report
Ah, I must have missed that last sentence to Section 1. So no Senate amendments at all. “Concur” means a strict up-or-down vote. Doesn’t mean that the Senate has to calendar a vote, though — it could “pocket veto” it, as I indicate in concern no. 2.Report
I actually kind of like the “pocket veto” aspect.Report
Maybe with a more constrained time period for it.Report
@burt-likko
I wonder if it wouldn’t better turned into a proper pocket veto – turn a Senate down-vote into a 2-year cool-down period on the law. That way each Bill has 2 choices for ratification – either the current Senate or the future House.
What I like about that idea is that it draws a distinction between a short and long-term advantage in the House. Winning the house once doesn’t help you much, but winning it twice in a row gives you a lot more leverage.Report
Not a bad idea, @james-k. We just need to specify then whether a second House passage after the cooling off period can also be turned down, or whether it’s immune from Senate veto. I’d argue for the latter, but that would require that the legislation be identical to qualify, and the odds of nobody successfully pushing for some changes in that two year period are pretty slim.Report
You really must not be worried about getting those grummishes nattered, @james-k. I am fearful of a talented minority of unreasonable parliamentarians using dilate tactics to stall needful legislation, either obstruction ism for its own sake or to extort pork.
Besides, if we grant the Senate this check, needs not a balance accompany it?Report
@james-k
That actually would potentially give us the problem that @michael-cain alludes to below. If the House can bypass the Senate, then the more populous states can bypass the least populous states entirely.Report
For no. 1, I suppose a caucus representing the Senate majority on an issue could tell the House majority on the issue: if you pass another law with the changes we want, we’ll concur right away.
For no. 2, I’m willing to negotiate on the number of days, cut it, say, to 90? When I wrote the post, I imagined that if an election of HR reps intervened, they could campaign on whether or not they would vote to reaffirm the bill that has been suspended (de facto) by the Senate. After I sent this amendment to Tod for a guest post, I did start to wonder about the “no one Congress can bind successor Congresses” principle, and how I didn’t address that. So yeah, that’s a pretty big window for a pocket veto.
For no. 3, I’m trying to figure it out. I want the president to have to honor the nullification of her order, but I don’t want to hamstring her, either. And in the right (or wrong) situation, the offense could be impeachable, which is how I designed the amendment to read. I also didn’t, at least in this draft, address the problem of the president issuing a slightly differently worded order. Perhaps I oughtn’t go that route? I suppose the Senate could wreak enough havoc by simply removing the responsible officers for no confidence?
By the way, thanks for giving such a detailed reading of my amendment.Report
I’m more comfortable with this if the pocket veto window is shortened. Especially in this day and age, with fast communications and fast travel, 30 days seems more than enough time to muster a quorum.Report
I’m not sure I’d do 30 days. For me it’s not just a question of how fast a quorum can be mustered, but more a question of empowering the Senate to suspend the bill. Maybe 90 days?
Remember that as it is now, the Senate and the House can each exercise a pocket veto on the other house’s legislation, with no opportunity for the other house to override.Report
Yeah, I don’t like that. I’d rather they voted.Report
Would support IFF it included strong measures to prevent Gerrymandering, or other ways of making the house composition more representative. One of the few advantages the senate has is that the election districts are fixed.Report
Given we have some pretty sophisticated GIS software, I fail to see why we can’t have a rule that congressional districts have to be the simplest polygon possible with given geographical & political boundaries & population distributions.
Basically, something like this would be just flat out illegal.Report
yer just jelly you probably won’t be elected to represent the good people of the green pac man left out in the sun too long melty head district.Report
@mad-rocket-scientist
I have to believe that if you get a bunch of mathematicians who specialise in topographics in a room they can design an algorithm that will draw boundaries well enough to make it better than any real-world process involving humans could be.Report
The problem is, if they’re good enough they can probably design an algorithm that would draw boundaries that are the specific sort of worse that favors their political party, at least for a generation or soReport
@mad-rocket-scientist I don’t think it’s obvious that having simple shapes should be our overriding goal in drawing districts. In general, there are a ton of goals in redistricting and some of them necessarily conflict. For example:
1. Ensure simple shapes
2. Maximize partisan competitveness (more 49-51 races, fewer blowouts)
3. Ensure that the composition of the state’s delegation roughly matches the state’s demographics (it raises some questions if a state that’s 30% black elects 18 white people and nobody else)
4. Follow existing political boundaries (county lines, neighborhoods, what have you)
5. Ensure that the delegation roughly matches the state’s partisanship (it would be strange and probably unrepresentative to have Texas send 50% Democrats to the House)
You may not agree with all of these, but they’re at least plausibly legitimate goals for redistricting, goals that are endorsed by actual people in society who have organized and fought for those goals. And they conflict seriously–for instance, #2, #3 and #5 are all completely at odds. I don’t think we can just resolve this by choosing one goal and focusing on it. In fact, of all these goals, I wouldn’t choose #1 as the most important at all (neither would the Congressional Hispanic Caucus, I’m guessing).Report
@dhex
If only there was room for a melty ghost district a bit to the east.
@james-k
Better & insensitive to the desires of parties for incumbency protection.
@alan-scott
That’s easy, the designers are culled from a range of political beliefs & the algorithm is open source, so no one can sneak in something hinky.
@dan-miller
All of your concerns can be rolled into the algorithm while simultaneously maintaining the simplest shapes possible. We already have some extremely sophisticated algorithms for meshing complex geometry in 3D space in order to perform numerical analysis. The list of criteria the algorithms use as constraints can be extensive & contradictory, but yet valid meshes are still created. This is done by giving criteria weight values, so the algorithm can prioritize the constraints. Those weights are the key to making things work, and the values those weights are set to is what should be determined by non-partisan persons (& public knowledge).Report
Here is one possible way to look at a map without gerrymandering.Report
If we’re going to be making modest proposals and all, why stick with single representative districts? Proportional representation!Report
I prefer single-member districts. I just wish there were a lot more districts.Report
It’s not Gerrymandering, but it’s also not sensical. People don’t live in simple polygons.
That scheme puts me in a district that includes a third of Bakersfield, a city a hundred miles away, but doesn’t include the town ten minutes north of here where many who live in my town work and shop. This algorithm cuts lines through the most populated areas as a feature of its design. That’s not going to cause cohesive districts, and non-cohesive districts makes representatives less answerable to the voters.Report
That’s the rub, really. More cohesive districts are likely to be more partisan. It can be done otherwise, but it’s hard to without the sort of judgment calls that are vulnerable to drawing districts with other things in mind (like gerrymandering).Report
@alan-scott
First off, keep in mind that is but one approach, and the author acknowledges the weaknesses of that approach (i.e. straight lines that ignore everything except population data).
As I explained in my reply to Dan, you can improve certain aspects of the lines drawn by applying weighted criteria to it.
Also, related to Wills comment, strongly cohesive districts are more likely to protect incumbents despite good reasons to vote them out, especially if the district enjoys wide benefits for that protection. We want districts that are cohesive in the sense that they have shared, common interests, but not so strongly cohesive that we are right back to where we are with gerrymandering.Report
I’ll take that one under consideration 🙂Report
Interesting. The Senate powers proposal is along the lines of what I’ve kicked around in my head a few times without ever coming to a conclusion on what I think about it. There’s a lot that I think I like, but I’m uncertain about what unintended effects it might have.
I would note that your section 3 probably needs to specify a military exception. If, in a time of declared war, or time of declared authorization to use military force while pretending it’s not really war, the SecDef orders the army to mobilize for the invasion of our declared enemy Vulgaria, we probably don’t want the Senate to interfere.
None of that’s meant to decry your general idea, though, which I find worthy of consideration.Report
Thanks a lot, @james-hanley
I’ve thought about a military exception–and perhaps one would be necessary to get the amendment passed–but I do think our military problems since WWII (at least) have been that Congress–either branch–is unwilling to flex whatever muscle it has to interfere with military operations. But then again, how would section 3 have affected Truman’s refusal to heed MacArthur’s advice in Korea?
I am worried about unintended consequences. One might be something @alan-scott alludes to above, in that the lawmaking ability of the federal government might be even more unrepresentative, even though the amendment supposedly empowers the most populous branch. I’m also worried that removal of responsible officers might lead to a non-responsible bureaucracy running the show while the president and the Senate hammer things out.Report
Gabriel,
I was careful to specify that Congress had already authorized military action. That detail is critical to my position. In the absence of such specification I’m totally on board with you about ability to constrain the military, but when the legislature has committed us to war, it’s inviting disaster to have a committee of armchair generals second-guessing operational decisions.Report
I should’ve caught the reference to Congressional authorization. In that sense, a military exception would be a good idea. Perhaps the exception would have to stipulate that Congress (and why not both houses for something so important?) would have to consent beforehand.Report
As a general heuristic, I can’t think of anything worse to put in a Constitution than a ‘military exception’ unless it’s to *limit* the power of a government body or the government as a whole.
One of the most serious current design flaws of the Constitution is that it doesn’t properly account for a large standing military establishment (because the guys who wrote it were against that). Furthermore 3/4 of everything the government does wrong now is because of some kind of ‘war’ whether it’s old fashioned war war, middle fashioned terror war, or new fashioned drug war (etc)Report
@kolohe
I’m a bit worried about introducing a “military exception” for that reason. On the other hand, I buy James’s argument against armchair generalship. Maybe any military exception, if we are to have one, must specify not only that it be under authority of a congressionally authorized military action, but also that the authorized military action must be subject to renewal, say, every year.Report
I like it, it basically takes the senate back to being a check against the excesses of democracy.Report
The Senate as the House of Lords under a Popular Vote?Report
Until we can repeal the 17th! 🙂
(I don’t actually favor repealing the 17th, though I am open to replacing it to gubernatorial appointment and recall a la Germany sort of.)Report
@saul-degraw
That’s partly (but only partly) the model I had in mind. The Senate might also, in a way, become a House of Commons, in the sense that responsible officers of government would be jointly responsible to the president and the Senate.Report
I’d like to thank everyone for the comments so far. Here’s a small explanation of what I am trying to do:
1. I would like to give the HR more power to make laws. I came up with the first draft of this proposal during the Obamacare debate and didn’t like what I interpreted as Senate obstructionism. Of course, if the amendment passes and the GOP-controlled HR pushes through privatized social security, or the small-business lobby criminalizes Walmart, then I’d have to eat a crow sandwich. (Also, as Alan Scott mentions above, the HR’s representativeness is a real issue.)
2. I would like to place more checks on the president’s powers. Perhaps, as @burt-likko ‘s hypothetical above suggests, doing so, at least in the way I propose, could move things in a bad direction.
3. I wanted an amendment that would have at least a slight chance of actually getting the 2/3’s of both houses to send off to the states. Each house gets something while it relinquishes something. And I avoid the problem facing the “let’s abolish the Senate” people because my amendment does not deprive any state, without its consent, of its equal suffrage in the Senate (it just changes the body’s powers).
James mentioned above unintended consequences. I know there would be some, but I’m not sure what all of them would be, so if you all have any suggestions, I’m all ears.
One possible consequence–perhaps not “unintended” but, rather, foreseeable–is that we’d just have squabbling among members of the government elite. The power of the president, qua president, might be checked (but might not….and if it doesn’t, then I’d want to reconsider whether I support the amendment), but the discretionary and potentially arbitrary power of government could continue apace despite all that, but this time with institutions more vested in being at the helm.Report
“Directly responsible to the President” is where I see a lot of potential mischief making. You can make an Org chart look anyway you want to beneath the two constitutionally defined executive branch positions.Report
@kolohe
“Directly responsible” was an addition to this draft that I hadn’t included on previous drafts. (For the history of my thoughts on the issue, click here.)
What I had meant was people who serve at the pleasure of the president and can be fired by him can have their orders nullified, on the presumption that they are merely putting in place the president’s agenda. Maybe I should limit it to cabinet members? (And actually, I had meant section 2 to say “appointed by and directly responsible to the president”, too.) So, I suppose if a civil service employee, or a contractor, makes a decision, the Senate can’t nullify it. What I was trying to avoid was the spectacle of the Senate nullify a decision of quasi-independent bodies, like the federal reserve.
Actually, I wouldn’t have needed to include the language about article III judges, since they aren’t directly responsible to the president.Report
Having spent much of my adult life in smallish states, I couldn’t support this without some Constitutional restrictions on House procedures. While it is admittedly unlikely, the ten most populous states today have enough Representatives to adopt a House rule that says, “Only bills introduced by a member from one of these ten states may be passed out of committee.” That leaves 40 states w/o any ability to introduce a bill that can become law. Why don’t we just say up front that little states no longer get any say on what the agenda is?Report
They can only do that if they do not care of their bills ever become law.Report
Not true if the President is willing to go along. The biggest 10 states don’t have the electoral votes to select the President, but the big 11 do (just barely). Fundamentally, the whole idea here is to make sure that a group of states, representing a relatively small amount of the country’s population, can no longer block legislation? Right? They can threaten the President by keeping all of the “senior management” slots in the executive branch open (removing any put in place by recess appointment), but that’s small potatoes compared to the threat the big 11 have.
If we’re going to go that route, I’d rather see the Senate abolished entirely and go with a unicameral, with each state getting its proportionate share of 535 members, with a minimum of three.Report
@michael-cain My reading of it is that the President and the House cannot do anything without senate approval. So I’m not sure how you’re seeing the Senate being bypassed here. If they don’t approve of a law, it doesn’t become law.
I’m doubly confused as to why you would sign off on a plan that would amplify the big state advantage far more than the one you are rejecting?Report
@will-truman
We’ll have to appeal to @gabriel-conroy here. Gabriel, I read the language “do not concur” to mean either “the Senate votes no” or “the Senate does not vote.” Certainly that’s the meaning that the phrase had during my time on the state legislative staff here. Will reads it to mean that there’s an (IMO) unstated third branch in the decision tree of “if the Senate votes no, then the bill is dead and goes to neither the President nor back to the House.” Both of us can’t be right.
Will, assuming my reading, under which the small states have lost their Senate veto power, why bother having a Senate whose job is reduced to being an irritant? They can slow down a bill and make the House reconsider, but not block it; they can mess with the executive branch by holding open all of the “senior management” slots; but they’ve clearly lost the one positive action the current Senate can take, which is introduce and amend legislation. I’d rather see a unicameral with somewhat disproportionate representation than a House with strict proportionality and a toothless Senate.Report
@michael-cain Under your reading, I would agree with you (and said as much to James K above at 10:29, when he suggested that alteration.) I think that Gabriel meant by reading. When Burt read it the way I did, as a pocket veto. Gabriel did not contradict that reading of it (7:18).
But under your reading, I would entirely agree with you. The verbiage needs to clarified.Report
@will-truman
And under your reading, my objections are much less strenuous. If the Senate can still block legislation, that’s probably a big enough club. Also agree about verbiage. If there are three possible outcomes, then they need to be spelled out. At the very least, the two options specified should not be exhaustive, as “concur” and “not concur” are. Myself — having become more than a little paranoid about drafting during my time as legislative staff — would replace the first clause in the OP with four. The first would say, “Article One Section 7 of this Constitution of the United States is hereby repealed.” The next three would follow the form of the existing section, but with the new restrictions and processes. I would never include something like “according to the rules and limitations prescribed in the seventh section of the first article”, because that’s just an invitation to create ambiguity. For example, is the intent that a bill vetoed by the President require a two-thirds approval in the Senate, even if the Senate didn’t approve it the first time?Report
@michael-cain ‘s reading is the one I intended. (Whether I actually wrote that clearly enough so that it wouldn’t be misconstrued is another question.) I would add to Michael’s concern that the Senate not only can remove senior management, it can also overturn executive orders. That may be no comfort to his objections because it certainly reads the Senate out of making legislation or exercising a formal power to amend, although it wouldn’t contradict the amendment for a Senate caucus to tell the House under what circumstances it would concur speedily.
@will-truman :
To clarify a bit about my non-objection to Burt’s pocket veto claim: the pocket veto would only be effective when/if the HR adjourns within the 180 time period and the Senate doesn’t act. If the House passes something in its first month, then a 180 day suspension wouldn’t pocket veto the bill. It would enable the HR to enact it and the president to sign. (But again, the fact that that wasn’t clear probably has quite a bit to do with how clumsily I wrote the amendment.)Report
@gabriel-conroy Thank you for the clarification. Reading it over, you were pretty clear and I read what I think I wanted to read rather than what you were saying.
Unfortunately, this means that I oppose your proposal steadfastly, and I don’t think you could get the requisite states to agree with it.Report
“and I don’t think you could get the requisite states to agree with it.”
Alas, you’re probably right.Report
That sort of de-legitimizes the whole process, don’t you think? If there are two classes of Members, one who can introduce legislation and the one who cannot, then we have two different classes of constituents, which means we have two different classes of citizens. So now we’re in equal protections territory and a parliamentary rule the house that partially disenfranchises some American citizens as compared to others is going to bow to the Constitution.Report
Unless it’s a political question.Report
James raises the proper point. The question is just how far “Each House may determine the Rules of its Proceedings…” can be stretched given the 14th Amendment. I suggested a rule that explicitly creates a second class of citizens, but it could be less direct. The current House rules are sufficient to do the job; the Speaker could simply assign such bills to a pet committee that never hears them. Lots of bills die unheard every year. I’m certainly not sure that a minority of House members could prevail at the SCOTUS, claiming that the rules were being used to implicitly create a second class of citizens, with the House majority arguing that it was a matter of priorities — a political question.
I admit to being somewhat spoiled by my time at the Colorado General Assembly. The Colorado Supreme Court has always been much more willing to stick its nose into the workings of the other two branches than the SCOTUS is. They imposed restrictions on the Colorado General Assembly’s rules, saying that all members must be treated equally in terms of introducing bills, and that all introduced bills had to receive at least one hearing on their merits. This strikes me as much more in keeping with equal protection than the current arrangement in Congress.Report
@michael-cain
On that particular example, I’m not very worried. If the House could, under my plan, do that, it can under the way things are currently structured. Of course, there is a difference in that under our current system, anything that passes the HR will still have to face Senate approval where small states have equal suffrage.
As for your general point about small states being mistreated, I take that in line with Alan Scott’s objection above about gerrymandering. The House is imperfect when it comes to the interest of small states and what counts as full representation. One advantage of our current system is that while each house of Congress imperfect in the way it represents people, it’s imperfect in different ways. They don’t cancel each other out, they can mitigate each other.
Other than giving the Senate the power to suspend legislation, I’m not quite sure how to answer the objection. That is, I don’t know what language to put in or how to fix the HR. That said, a suspensatory veto could work well to mitigate, especially if it’s on the longer end of the spectrum. There’s a lot to be concerned about in my proposed 180 days, but one good thing is a lot can happen in 180 days. And if a Senate caucus does say “we’ll speed up the concurrence if you adopt x, y, and z,” then it still could have a say.
(For the record, in earlier drafts of my amendment, the Senate could propose amendments to legislation.)Report
Michael, it’s sort of weird that you suppose that state size matters in the house. The congressional delegation from California doesn’t represent the will of Californians as a whole. They represent the will of the bit of California that they’ve been elected to represent.
I’ve lived in California for all of my life. For most of my life, my state representatives have had more in common, in every meaningful way, with the representative from wyoming than with the representative from San Francisco.
What are the monolithic interests of big states that the little states keep in check, exactly? What unifies every rep from California, Texas, and Florida that would be an anathema to Wyoming, Delaware, and Hawaii?Report
I know that in the large state where I lived, the congressional delegation had each other’s back when it came to certain things. This was true regardless of Republican or Democrat, and one side of the state to the other. This included things like military bases, federal grants for research and/or universities, transit issues, and so on. It was newsworthy when a congresscritter broke ranks.
Interstate water management might be an issue. At least, that’s one of the things that came up in this conversation over at OTB, with several people worried that splitting California up would hurt their clout in water negotiations.
It’s advantageous to have a large congressional delegation.Report
Yeah, I know I’m sort of out on the lunatic fringe on the subject. My personal experience, though, is that when someone wants to reduce the disproportionate power of small states in the US Senate, if you spend some time with them you can usually find the issue where they think the will of the people generally was thwarted by Senators from smaller, less-urban states (often aided by the filibuster rule, which provides additional leverage). Eg, I know several people who say, “If only we had proportionate majority rule in the Senate, we could have passed a much saner version of the PPACA.”
Basically, my challenge to people who say, “Let’s reduce the power of small-population states in the Senate,” is to ask that they show me that regionalism is gone; that sharp urban/rural divisions on policy have disappeared; fundamentally, that the problems the authors of the Constitution thought they were addressing with the Senate are dead and buried and can’t come back.Report
Well, yeah. of course the sharp rural/urban and regional divides are still there. It’s just that the senate, as currently construed, is a terrible place to hash them out, because it simultaneously gives rural interests in places like Wyoming and Vermont an over-sized advantage while simultaneously shutting out the bulk of our nation’s rural population, who live in states like California, New York, and Texas–Places where the senators usually represent the interests of the big cities.
I’ve lived in rural California all my life, an my experience is that our representatives do a decent job of representing the interests of rural Californians, while our Senators, of course, represent the interests of San Fransisco and Los Angeles. Senators from the mountain west states may have done a good job of representing-by-similarity the views of folks in Shasta county where I grew up, but the California Central coast is a very different sort of rural than Wyoming or Montana.Report
Nay all around.
The status quo must continue until it collapses in upon itself. Only then can real reform take place.Report
Basically, I see a half-handful of problems right now in Congress, and they’re all basically due to no Constitutional rules preventing the creation of procedural rules designed to halt everything. Over time, both Houses have established those rules for completely natural and predictable (albeit not by the Founders) political game theory reasons.
So I’d take a different tack.
Problem: priority is established by each House. They can, literally, decide to do nothing, and halt the government. This is something that wasn’t really anticipated in the original design.
Solution: business of substance shall be established. The following matters shall be considered business of substance:
(1) The federal budget
(2) Legislation originating in the other house, duly passed and submitted for consideration
(3) Matters that have been declared business of substance by 60% majority of the House in question
(4) For the Senate: review and approval of Presidential nominees
(5) Reconciliation
Problem: it is procedurally possible to kill a bill in one House of Congress – without actually bringing it to a vote – provided you control the seat. This is effectively an enormous veto power that currently resides in two sets of hands, the Speaker and the President of the Senate, either of whom can prevent a bill that originated in the other House from coming to consideration on the floor. This is also clearly against any workable idea of how the Legislature should work.
Because Lord knows, we can’t even let our dumber members get in front of the mic to discuss Immigration Reform because they’ll murder our chances in the next election.
Solution: all business of substance must result in a vote. So, given a bill that originated in one House of Congress, and passed on a majority vote in that House, the other House must do one of the following: pass the bill as-is on a straight vote, reject the bill as-is on a straight vote, or (successfully) amend the bill and return it to the previous House for round two, or call for Reconciliation.
How do you make them do it? Simple: no new legislation can originate in either House when there is outstanding business of substance to resolve. There is an exception for Declaration of War, which can be declared, regardless of outstanding business of substance.
As a due consideration to the other House, such must occur by the end of the next working session of Congress. As a due consideration to the Executive, all Presidential nominees shall receive a confirmation vote from the Senate by the end of the current working session of Congress. To prevent the President from DDOSing Congress, Presidential nominees shall be only submitted at the beginning of each session.
Problem: sessions are controlled by rules designed to allow either House to control when it is officially doing business, and they can say they’re open for business when they aren’t.
Solution: both Houses of Congress shall have two designated sessions with established beginning and ending dates. Congress may only meet during those times, or when requested during a state of emergency to assemble by the President (who can call Congress back to Washington to do things like “declare war”).
Should the end of session be reached without all business of substance being concluded, every sitting member of that House shall have their term expired at the next election? I’m for it, anyway.
Problem: it’s politically advantageous to kick cans down the road, especially if you think the next election is going to be close.
Solution: since either House of Congress can now declare a particular matter a business of substance to itself, it’s still possible to kick cans down the road but you can stick a time bomb in them. Now an outgoing House or Senate can decide (even if it can’t decide itself) that something must be addressed by the next session, and declare the matter of business of substance.Report
That’s an interesting set of ideas, @patrick , but I’ll have to mull them over a bit before opining. A couple concerns for the moment:
1. What’s in it for each house’s members to muster the 2/3 necessary to refer the proposal to the states?
2. Another problem not mentioned in your intriguing comment is the growing, more or less unchecked power of the executive. How might you resolve that? (Not, of course, that you have to resolve everything I wanted to resolve, or that everything can be resolved in one amendment, or that my solution would do the good I think it will, or that my solution is inconsistent with much of anything you wrote.)Report
(1) No, you don’t refer the proposal to the states, you refer it to yourself.
To explain more fully:
Someone in the Senate thinks that (issue) is really important. The House hasn’t put forth a bill. The Senate hasn’t put forth a bill. There currently is no bill. But that member of Senate thinks “there really ought to be a bill, even if our current Senate can’t get their shit together”. So instead he/she proposes, “Resolved, as a matter of concern, that an Immigration Reform bill shall be business of substance in the next session”. If the vote passes, then the Senate needs to come out of the next session with a bill on immigration before they can originate any other legislation.
Why would a particular Senate vote on it? Well, because it kicks the can down the road, but the can has a ticking time bomb in it. If the next Senate doesn’t handle it, they can’t originate any other legislation (they can still vote on whatever the House sends them, and they can still vote on Presidential appointees and they can still vote on other business of substance, but they can’t originate any bills to send to the House until they clear the plate). Would it be a cure-all? No, of course not. But it adds incentives that can make legislation get off the ground that would otherwise die in committee.
(2) The executive is unchecked because there is no incentive to check the executive. You add “business of substance” to the role of Congress, and now a lame duck Congress can say, “Hm, you know, we really let (Bush/Obama/whoever) get away with (whatever) and we really ought not to have done that. So, I’m not getting re-elected anyway, I’m terming out or I’m running for a different office or I’m facing a likely challenge so I might as well force some action… I’ll make something in particular a business of substance and the next Senate needs to tackle it or they don’t get to originate any legislation.
At the very least, every other member of that House needs to go on record as saying, “You’re right, we should fight this fight” or saying “No, it isn’t”, but they don’t get to get away with never having to put their vote out there.
Kinda like Presidential pardons all come through when the guy/gal isn’t going to have to suffer any consequences from issuing them.Report
The only way you can ignore business of substance would be if both houses of congress collude to do so. “We don’t want to tackle Immigration Reform, so we’ll both just give each other ‘other business of substance’ to tackle so that we can get work done.”
But eventually you don’t hold both Houses, and at that moment, there’s going to be a bill coming out of the other House. And once that bill comes out of the other House, you’ve got a matter of substance to deal with.Report
But the next Senate can’t be bound by the rules of the previous one, or am I missing something? It seems that in order to ensure the rule must carry over is to change the Constitution. If you’re just speaking of each house adopting a rule along the lines you propose, then I guess that works as a rule, but they can always unvote the rule any time they want.Report
Oh, yes, I was talking about amending the Constitution. It was clearly a mistake to allow both Houses of Congress to adopt their own rules without enforcing a process that would require them not to deliberately avoid dealing with each other or the Executive.
This would lead to other exceptions, of course, but it’s hard to hold both Houses of Congress at a time, so at the very least either House has the ability to force the other into a *vote* on something. No more “shit dies without a vote” and less “stuff dies in committee”.Report
In that case, that’s what I meant with my question about 2/3’s of each house referring the amendment to the states. Why would senators and reps want to limit themselves in that way?Report
Ah.
Well, I thought we were talking about amending the Constitution in the OP 🙂Report
Sorry, I just got confused. One reason I push the amendment as I do is because there’s a reason for each body to vote for my proposal. That doesn’t mean they would, of course.Report
I’m not seeing enough upside for the Senate for them to go for it. You don’t get to originate legislation? That’s a major political card.Report
The lack of origination wouldn’t strike me as a problem if Senate approval were required because the House would be very much interested in what it would take for the Senate to agree. But with only the ability to delay legislation, that would be a huge problem.Report
The upside for the senate would be the huge amount of oversight they would have over the executive. In some ways, I would like my amendment to make the senate a sort of “executive council.” Even that might not be enough–and it’s not entirely clear to me that it would be a good thing, either, but I’d hope it would.Report
The upside for the senate would be the huge amount of oversight they would have over the executive.
Explain to me how this is a “legislative” function since the Senate would no longer be able to originate legislation. More to the point, explain to the SCOTUS how this is a “legislative” function when the President and independent agencies start filing separation-of-powers cases.Report
@michael-cain
Well, you’re right. It’s not a legislative function. Obviously, scotus might have a hand in interpreting the amendment (assuming it’s not a political question, etc., etc.), but the purpose of the amendment, as an amendment, is to change the way the separation of power works, so that, I hope, the senate can exercise a check on the president. The president won’t be able to object constitutionally to the fact that the senate is exercising the powers it is exercising.
I would like Senate’s power to remove and invalidate decisions applicable only to those who are directly responsible to the president. (I wasn’t entirely clear on this point. I mention direct responsibility in section 3 but ought to have mentioned it also in section 2.) In other words, the Senate would not be able to overturn, say, the Federal Reserve’s decisions nor would it be able to fire members of the Fed (nor civil service employees, for that matter).
And while my proposal is very novel, it’s not a complete departure from the special function the Senate now exercises vis-a-vis the executive. As you know, it already approves or declines to approve the president’s nominees and in theory has a special role in international affairs via its treaty ratification powers.
None of this, I admit, really answers your objection to one foreseeable thing my amendment would do: effectively limit the power of smaller states when it comes to originating, approving, and passing legislation.Report
, explain to the SCOTUS how this is a “legislative” function when the President and independent agencies start filing separation-of-powers cases.
It’s an amendment to the Constitution, so it constitutionally breaks down separation of powers, to a limited extent. If passed there’s no constitutional separation of powers argument to be made against it. Of course there would probably be cases to define its effective boundaries.
Gabriel,
Would this apply to the Executive Office of the President, or only to appointees whose appointment requires Senate approval? I’d limit it to the latter.
As to an executive council, not that you can’t recommend one, but the Framers rejected the idea because they were afraid of the diffusion of accountability.Report
James,
I don’t intend it to apply, and don’t want it to apply, to the president (or vice president), although I guess you can say the president is “responsible” to him-/herself and could resign.
You’re right that the founders rejected the idea of executive council. I’m reintroducing it, but on a very limited level: it’s a council that has a veto on many of the president’s actions and officers, but because I envision its new formal role to be mostly negative, I don’t think diffusion of responsibility would be much of a problem. The president would still have power to issue executive orders without prior approval. The Senate can only nullify them, not issue its own. The president can still appoint whom he wants, subject to senate approval.
There is room for the diffusion of responsibility, I admit. The president can issue a wild order he knows the senate will nullify, and then he can complain about the senate hamstringing him. Also, the amendment makes my “responsible to the president” framing imprecise, because those same people are now responsible to the senate. Also, I suppose this amendment could lead the president to create a “liaison to the senate” who acts as something like a “prime secretary” who coordinates executive action with the senate to ensure the senate won’t disapprove, and perhaps the “prime secretaryship” will evolve into an office of its own. I’m not sure that would be a good thing or a bad thing, but it could happen.Report
Gabriel,
I’m not thinking of the prez and veep themselves, but their White House staff: their advisers, OMB, and so on. They are the president’s people in whole–the prez chooses them without advice or consent from any legislative body and can fire them at any time for any reason. In bicycling terms, they are his domestiques.
They can wield tremendously more influence than cabinet agency officials, and so in a way are much more dangerous. But they also are a president’s most reliable staff, and his/her best way to gather around them the people they really trust (other appointed positions are often political payoffs, or given to friends of friends of supporters).Report
@james-hanley
I hadn’t thought of white house staff. My inclination is to agree with you, though.Report
Patrick,
Your business of substance proposal, I think, has some fatal flaws.
First, it effectively allows one house to dictate the schedule of the other. Whichever makes the first substantive business call can then make another while the other house us dealing with the first one, and continue doing so, depriving the other house of any ability to originate legislation.
2. Frequently both houses are working in similar issues. Whichever house gets a bill out first can block the other’s independent work. The second house could get around this in part by potentially making its whole bill an amendment to the first house’s bill, but only if they have a bill out of committee, presumably, else they are constrained to bypass their committee and work on the other house’s measure instead of their own.
Of course this could be gamed, by amending the other house’s bill to something totally irrelevant, like amending a minimum wage law to be a resolution saluting the Detroiit Tigers on the 20th anniversary of their last World Series, to buy themselves time.
3. How is to be enforced? The president can’t enforce it. Are we going to allow court challenges and strike down otherwise constitutional legislation because it was passed before some other measure that should have been passed first?Report
(1) Well, there’s nothing preventing the Senate from saying, “Oh, a 121st resolution on repealing Obamacare? We’ll call for an up or down vote… ‘no’ passes, business of substance resolved”. Except not wanting to be on the record with a no vote. In order to really DOS the other House, you’d have to send them an enormous amount of legislation where the other House would have a substantive number of folks who would want to at least entertain the legislation in question. To be honest, if there’s a substantive number of the other House who are wanting to at least entertain the legislation in question, “forcing them to do something” is maybe better than “allowing them to continue to ignore it”…
(2) This is true, but I’d argue that the original intention of committees (to steamline the sausage making process without bogging down the whole House) has been supplanted by “kill legislation”, so I’m not sure that the change wouldn’t be better?
(gamed) Sure, but again, you have to vote on it. That in and of itself would become a relevant statistic, I’d guess, how many times you voted yes on bullshit legislation. Whether or not that would change anything depends on the voters.
(3) Now on this one you got me, I’m not sure, I’ll have to think on that one. Suggestions?Report
No, no suggestions. It’s the same reason I never supported the ‘Read the Bills” proposal a former co-blogger was pushing, and the same challenge I put to a guy who wanted to require Congress to have to write an explanation each time it passed legislation that didn’t accord with what a group of experts recommend (I also pointed out that ‘Fuck you, because we can” would be sufficient explanation).
There’s really no way around this problem without making a big encroachment on separation of powers: more specifically, probably a big shift of power to the executive.Report
Granted, there’s nothing to prevent a House from breaking rules right now, really. Instituting the “you’re instantly termed out” rule would address that.Report
If your concern is about legislative inaction, I think the best response is proportional representation, with people voting for parties, not individual candidates. We can hold a party accountable for inaction when we’re voting for parties, but not when we’re voting for individuals.Report
Well it beats the pants off my suggestion of just making me King.Report
Silly, you were born in Canada, so constitutionally you can’t be king.Report
Taking into account @michael-cain ‘s and @will-truman ‘s objections–and the likely resistance of small states to my proposal–I may be willing to compromise and permit the Senate to effectively veto any HR bill and not simply “suspend” it. While the Senate would still be unable to formally offer amendments, senators could still caucus with the HR and state what types of provisions any given House bill would have to include in order for them to vote its approval.
That might not be enough to satisfy the objections, but I’m willing to go at least that far.Report
My last comment was at least borderline rude — I apologize for that.
Politely, I ask for clarification of the phrase: “The Senate shall have power to nullify… any order issued by the President when engaged in his or her official duties as President…” There’s been discussion of a military exception already, but I’m more curious about the civilian side. That seems to cover a lot of ground. Written? Oral? What do you think the reporting requirements are going to be? I envision conversations that start like this:
President: Sally, I think it might be a good idea if IRS agents in Cleveland used certain political buzz words in deciding which non-profits to investigate. Not that that’s an order, mind you, just something to think about.
Sec of Treasury: Mr. President, I’d be happy to think about that.
Followed a week later by:
Sec of Treasury: Bob, I think it might be a good idea if IRS agents in Cleveland used certain political buzz words in deciding which non-profits to investigate. Not that that’s an order, mind you, just something to think about.
Non-appointive Civil Service flunky: Mr. Secretary, I’d be happy to think about it.
And later that day:
Bob, to Cleveland IRS head: Pete, use a list of buzz words to decide which 501(c)(4) non-profits go to the top of the list of the outfits we’re auditing.
Is there an order in there that has to be reported? That can be nullified? I’m trying to think about unintended consequences. When Colorado implemented term limits, the intent was to encourage fresh thinking by having greater turnover. One of the unintended consequences was to increase the power of the permanent bureaucracy because — to choose an example that I have first-hand experience with — government budgeting has become incredibly complicated, and term-limited part-time legislators don’t have enough time to learn the mass of detail. I would be afraid that a process that subjects every order by the President and appointed “senior management” to review would result, in practice, to a great deal more of the decisions being made by the senior civil service.Report
@michael-cain
First, I don’t know specifically what comment you’re referring to, but I don’t find anything you’ve said here to be rude.
Your question is a good one, and I don’t have a great answer. My main intention would be that these be orders that are written down, usually with a number after it. So, for example, a Senate more respectful of civil liberties than we had in 1942 would have been able to overturn e.o. 9066 (Japanese-American internment).*
I would not, however, want to rule out spoken orders. Or to put another way, I wouldn’t want a president to be able to make an ordinarily reviewable (by the senate, under my plan) order non-reviewable simply by giving it orally. But I’m not sure where to draw the line in terms of how I’d phrase the amendment. My best bet would be to leave the relative phrasing in the amendment as I have it now, and let the courts and/or perhaps Congress, by law interpret what an “order” is. Or perhaps I could say something like “all written orders and other such orders that Congress shall, by law, designate as applicable to this amendment.”
The irs-tax-audit scenario you present poses a problem that my amendment can’t do much to solve, especially because in that case it’s publicity that “nullifies” the order (by exposing it and exposing the IRS to lawsuits). The senate’s nullification would be superfluous.
A question you were perhaps driving at is, wouldn’t such orders become more and more the way of doing things, so that there’s a lot done based on “understandings” of what the president wants? My amendment would certainly create an incentive to do that that doesn’t exist now (not that there aren’t already incentives, or that presidents don’t do that). While that wouldn’t (I hope) become wholesale the way things would be done–some orders would have to be written down, after all, because they’re so complicated and boring, but consequential, day-to-day stuff needs to be done every day–it would create a margin along which doing so would seem like a “good” choice. If that margin is thin, then the effects of my amendment would probably be good, at least as far as that particular harm (and not, say, the loss of power from smaller states). If that margin is large, then my amendment is a bad thing, or arguably so. How to define “small” and “large” is a different issue, and I don’t know the answer.
*Discussion above has mentioned a military exception, which I’d agree to, but hesitate because it might be used to justify something like internment. I would prefer to limit the exception to actual combat operations in a theater of combat.Report