Tom C. Korologos: The Senate Goes Nuclear, Fallout to Come

The Constitution is chock-full of provisions to protect minority rights. Harry Reid thinks he knows better.

By Tom C. Korologos
Nov. 22, 2013
Classical Greeks called it “ochlocracy.” Alexis de Tocqueville referred to the “tyranny of the majority.” James Madison warned of “the Superior force of an interested and overbearing majority.” Someone else said, “It’s like two foxes and a hen voting on what to have for dinner.”Now “nuclear option” has found its way into popular discourse about majority rule—thanks to Senate Democrats who on Thursday broke the filibuster rule and ended the traditional supermajority of 60 votes needed to confirm judicial and executive-branch nominees. In leading the charge, Majority Leader Harry Reid erased 225 years of precedent and altered the soul of the U.S. Senate.Welcome to a Senate that no longer is “the world’s greatest deliberative body.” Welcome to a Senate that has now formally completed the polarization of the two parties. Uncharted waters lie ahead.The Founding Fathers, taking note of various definitions regarding so-called majority rule, made it very clear when they drafted the Constitution that its operating principle would not be majority rule, but rather protection of the rights of the minority.

Senate Majority Leader Harry Reid and Sen. Charles Schumer after a news conference Thursday about changing Senate rules. Chip Somodevilla/Getty Images

To that end, the Constitution is chock-full of requirements to protect the minority. The original premise of the American system is checks and balances. Three branches of government—legislative, executive and judicial, in that order—are the subject of the first three Articles of the Constitution. Each limits the power of the others. Consider:

• “Each State shall have at Least one Representative.”

• “The Senate of the United States shall be composed of two Senators from each State”—regardless of size or population.

• “The Senate shall have sole Power to try all impeachments . . . and no Person shall be convicted without the Concurrence of two thirds of the Members present.”

• “Each House may determine the Rules of its Proceedings,” and can punish members for bad behavior—but can expel them only with a two-thirds vote.

• Before a bill becomes law, it must “be presented to the President of the United States; If he approve, he shall sign it, but if not he shall return it with his Objections to that House in which it shall have originated.” If both houses then pass the bill by a two-thirds vote, the section of the Constitution continues, then it “shall become Law.”

• “The President shall be Commander in Chief . . . . He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

• “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments which, in either case, shall be valid . . . when ratified by the Legislatures of three-fourths of the several States.”

In addition to these examples, the Constitution in several places makes the point that Congress shall make no laws (not even with a 100% vote of both houses of Congress) respecting establishment of religion, abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition the government for redress of grievances.

Furthermore, a significant number of states have adopted requirements that taxes may only be raised if approved by a supermajority. Some states have adopted requirements that ballot measures be approved only via supermajority vote.

The protection of the minority is prevalent throughout other parliamentary systems that have two-thirds requirements—Canada, India and the United Kingdom. Even the European Union has certain qualified majority provisions designed to protect the interests of small member nations. And the United Nations Security Council requires a supermajority for substantive matters.

One final thought for Senate Democrats. At some point it is entirely possible, and perhaps increasingly likely, that Republicans will again control the White House and the Senate. So today’s majority might want to keep in mind what a wise person once advised: “When you build a gallows, be sure you know whom you are going to hang.”

Mr. Korologos, a strategic adviser at DLA Piper, was U.S. ambassador to Belgium during the George W. Bush administration and handled White House relations with the Senate from 1971-75. He has also assisted numerous Senate confirmations for both Republican and Democratic presidents.