Hello! Hello! Hello! Welcome to episode 36 of We Don’t Talk About P-word. Today, we continue to answer the question: “What’s the matter with our government?” Last week, we focused on the House. This week, we will focus on the Senate. 
To be honest, the Senate isn’t in a terrible place. It could be the most effective and efficient part of our government if it chose to be. Sadly, like the rest of the government, it is ravaged by partisanship.
So, how do we fix that?
First, let’s talk about why the Senate is what it is. The House of Representatives is the direct representative of the People. (I mean, it’s in the name.) The Senate is a little harder to generalize. At its founding, the Senate was the direct representative of the states. This is still mostly true, but the way we changed their election in 1913 made it less cut and dry. 
Before 1913, Senators were appointed by the legislators of the state they were from. Now, the People elect their Senators. In theory, this change makes them more likely to favor the state’s citizens over the state’s government. It makes the Senate as much a representative of the People as the House. What keeps them separate is that Senators are elected at large and limited to two per state. Since there is an equal number of Senators by state, they still represent the state at-large. Now, they are not beholden to state legislators but to their people. You could even say it is now more in line with democratic values.
The biggest, and most obvious, difference between the two is, of course, the number in each house. This allows them to fulfill their original constitutional purpose. One house represents the population of each state. The other represents states equally. Both must come to a consensus to pass legislation. There are other, often overlooked, differences that are just as important. Those differences are age requirements, length of terms, and citizenship requirements.
Today, one might look at those requirements and think they are arbitrary. They were not. For those who may not know, the Senate requires you to be thirty years old and a nine-year US citizen. Their terms are six years. The House requirements are twenty-five years old, and to be a seven-year citizen. Their terms are two years. (Check out episode 21, Agreement or More Importantly Compromise, for more information.)
Understanding why the term, age, and citizenship requirements aren’t arbitrary is important. It helps us understand our Founder’s intentions with the House and Senate. Some of what I am about to tell you may make you laugh. It is hard to imagine the Senate we have today living up to how our Founders described them. But keep in mind that this is the government our Founders designed. We have let it get to where it is today.
It is important to note that in 1790, the average US life expectancy at birth was forty-four years. Our perception of age today is vastly different than during the early Republic. 
To highlight the Founders’ intentions, we will discuss the Federalist Papers. The purpose of the Federalist Papers was to sell the Constitution to the People. They are also the best analysis of the rationale behind our Constitution’s design.
Here is how John Jay would describe the Senate. The Senate will consist of “…those men only who have become the most distinguished by their abilities and virtue..." Oh, John, you gave modern politicians way too much credit. In the same paper, he also said the state legislatures would “…be composed of the most enlightened and respectable citizens..." John Jay, everyone, the eternal optimist.
But how would they achieve this? If you consider the age progression for federal office, they put a large emphasis on age. The House has a minimum age of twenty-five, the Senate of thirty, and the President of thirty-five. The Founders saw age as a sign of maturity and knowledge. (Something tells me this was a more accurate gauge in 1789 than it is today.)
The Founders believed an older age would ensure more experienced men in the Senate. Men who thought before they acted would form a chamber to temper the passions of the House. They would protect the minority from the whims of the masses. French philosopher Alexis de Tocqueville called it the “tyranny of the majority.” This is also why the responsibility to approve treaties was vested in the Senate, (and only the Senate). The Founders believed that this role required more experienced representatives. 
They believed that citizenship requirements were important as well. It would ensure greater exposure to the effect of global politics on the United States. They believed that would ensure Senators were more acquainted with foreign affairs. That’s not to mention that most would gain experience in the House first. 
James Madison’s Federalist Paper #62 discusses these qualifications in depth. If you want to read it for more information, ignore the selection process part. We finally learned the lesson of partisanship created by that provision in 1913. 
To be perfectly frank, the Senate was designed to be the foil of the House. The opposite is also true. Remember, when no one is happy, you’ve done governance right. 
The Founders described the House as the more passionate chamber. They described the Senate as the deliberative chamber. In both, these methods of governance were encouraged. The House acts on the impulses of the American people. The Senate slows those impulses based on their greater understanding of government. This is why their term lengths are so different. The Senate, in theory, will have more experienced statesmen. The House will ebb and flow with the whims of the People. A representative's influence is very limited. They only have two years to achieve their agenda. In theory, that is because they are the least experienced. Consider the House the 1789 entry-level position of the federal politician.
Lack of qualifications plague the Senate, in general. The People rarely select their Senators based on qualifications or knowledge. (That applies to the House too, for that matter. But that is more forgivable.) The People base their selections on passion, which is usually based on partisanship. Now, I am not suggesting we return to a time where state legislators choose Senators. That was also a terrible idea and contributed to our hyper-partisan state. But electing based on passion doesn't mean that the Senate can’t or shouldn’t remain deliberative. Deliberative means “carefully considered.” I’ll even accept the idea that being deliberative means slowing things down. Deliberative does not mean ineffectual, which is what our Senate has become.
As I said earlier, the Senate is not in a terrible place. With one simple change, the Senate could be the great defender of American democracy. It could be the great equalizer, if you will. This one change would have a domino effect, making the Senate much closer to its original purpose.
With that bold claim, let’s talk about the filibuster. 
First, let’s talk about the origins of the word filibuster. It is not what we saw in Mr. Smith Goes to Washington. It was not a tactic for political obstruction. Well, not in the way you would think… not at first. 
Filibustering was a movement in the US in the 1800s. Filibuster referred to, for lack of a better term, pirates. These pirates did not sail the seas seeking plunder. Their goal was to spread the manifest destiny of the United States whether the U.S. wanted them to or not. Filibusters would, without government consent, infiltrate small countries and attempt to assume power. Some had the goal to cede these nations to the United States. This was common in the Caribbean and Latin America. Some historians even blame the south’s secession on the filibuster movement. If you listened to our series on Hawaii, there were filibusters present there, as well. I didn’t refer to them as such as not to confuse.
This doesn’t mean that filibusters were not used in government; they just weren’t called that yet. The first session of Congress saw its first speech used to delay action. Senator William Maclay of Pennsylvania wrote of it in his journal. “The design of the Virginians and of the South Carolina gentlemen was to talk away the time, so that we could not get the bill passed.” In the beginning, there was no way for the Senate to end the debate over a bill.
Later, the previous question motion was used to end debate. It was introduced by Thomas Jefferson in his 1801 congressional rulebook. It forced a decision on a Senate vote by a simple majority. The history and purpose of the previous question motion is confusing. It is even different based on the historian you read. So, I won’t spend much time on it. It was rarely used and removed from the Senate rules by 1806. It was at the suggestion of, then Vice President, Aaron Burr. The House, who at the time allowed unlimited debate, kept the previous question rule.
Before the Civil War, most Senators followed the guidelines set out in Jefferson’s rule book. “No one is to speak impertinently or beside the question, superfluously or tediously.” The term filibuster became synonymous with obstruction tactics around 1850. During this timeframe, northern politicians tried not to alienate southern politicians. Southern politicians worked in vain to protect slavery. Only six recognized filibusters can be found in Senate records before 1863. The first successful one occurred in 1837. But by the 1880s, filibusters had become commonplace. 
This doesn’t mean the filibuster was popular. There were several failed attempts to reinstate the previous question rule. The filibuster debate came to a head in 1917. 
In the lead up to World War I, a bill passed the House to deter German U-boat attacks. It would arm US merchant ships for defense. A filibuster at the end of the Senate session killed the bill. President Woodrow Wilson wasn’t happy. He called the filibuster the act of “a little group of willful men, representing no opinion but their own.” 
Senator Robert LaFollette of Missouri was ultimately not recognized to speak. The time to the sessions recess ticked down the same, and his would-be speech was entered into the record. He made some excellent points and the session ended without passing the bill. Unfortunately, history would make his points moot. The infamous Zimmerman Telegram was verified on March 3, the day before the session ended. The final straw came when German U-boats sank three American ships. A little over a month later, on April 6, the United States would declare war on Germany. 
The incoming Senate, elected in November, introduced the cloture rule, known as Rule 22. Rule 22 creates a method to end debate by invoking cloture. To invoke cloture, a vote must pass by a specific threshold called a supermajority. This threshold was originally set at two thirds. Today, a two-thirds supermajority would be 67 votes (depending on the quorum, of course). Its first successful use would end debate on the Treaty of Versailles, which would end World War one. Over the years, the threshold and legislation that requires cloture have changed. In 1975, the threshold was reduced to three-fifths, making it 61 votes. It remains that today. 
Filibusters remained unpopular for quite a while. Since 1917, 2700 filibusters have been invoked. Of those, nearly 2000, or roughly 74%, have been since 1999. Nearly 700, or 24%, came between 1969 and 1999. If you are doing the math, that only leaves two percent.
Between 1917 and 1969, only about 50 filibusters were invoked. For just over fifty years, they averaged roughly one a year. The truth is that there were many sessions with none. (A session is two years long.) Only four sessions had more than four. They never had more than seven filibusters in a single session. 
Compare that to the last ten years, where we’ve averaged nearly 133 a year. We are nine months into this year and there have already been ninety.
It is important to note that there is nothing unconstitutional about the filibuster. The Constitution gives the Senate complete autonomy to make its own rules. It also outlines specific things that require more than a majority vote. There are only five: 
1.	Ratification of a Treaty
2.	Removal of a member of Congress
3.	Conviction of an impeached president
4.	A Constitutional Amendment
5.	A veto override
Those five instances are some of the most consequential votes Congress can take. A treaty not only affects the American people, but people around the world. It is something that a nation can’t just “take back.” 
Removing a member from Congress is consequential. It means invalidating the votes of the districts and states that elected them. Currently, the 45th president is under indictment for Conspiracy Against Rights. That is related to the Constitutional right of the People to have their vote count. Taking that right away, even by a Constitutional vote, is a serious decision. 
Convicting a President after impeachment also cannot be understated. Removing a president from office has the same effect as removing a member of Congress. It is not a simple question to answer. This is why after only four presidential impeachments we have seen no convictions. Well, that and partisanship.
A Constitutional amendment affects everyone. It fundamentally changes our government. This requires no further explanation. 
Lastly, the veto override is a manifestation of our system of checks and balances. It only works if more than a majority is required. 
For each of these instances, a larger vote threshold is necessary and proper. They have significant repercussions for the People. It is not appropriate to hang a supermajority around the neck of all bills and appointments. It may be constitutional, but it sure as hell is not in the spirit of that great document. 
At no point would the founders approve of the threat to national security that this would pose. That is exactly what is happening right now. The undemocratic nature of our current Senate is endangering national security. Currently, a single Senator is holding up over three hundred military promotions. Why does that matter? It affects military readiness and until recently left several top spots empty. (Fortunately, our military is all about “the next one up” and is surviving.) 
Just because you can, doesn’t mean you should.
The filibuster and supermajorities are contrary to our democratic form of government. They lessen the rights of the People. They lessen the democratic values of our government. They create gridlock in passing the People’s laws.
The House is supposed to act like spoiled, entitled, teenagers. 
The Senate is supposed to be the adults in the room. They are the “experienced” leaders with a firm grasp on foreign affairs. 
The House is driven by the vast desires and whims of single districts. 
The Senate is supposed to represent their entire state. They are the bridge between parties and independents. 
The House acts on passion and impulse. 
The Senate is meant to be measured and deliberative. They are meant to slow the process by tempering the passions of the House.
The House is meant to represent a state’s population. 
The Senate is meant to represent the states equally. They are the great equalizer of government. Filibusters and supermajorities prohibit the Senate from fulfilling their purpose.
The Founders were deliberative and had an uncanny grasp on government. There was a reason only five were chosen to be constitutional. Anything other than majority vote is, itself, undemocratic. 
Do you think the Founders didn’t know that their government had undemocratic aspects? They limited democracy only where they felt it was necessary and proper to ensure the Union remained… well, united.
They limited it by creating a Republic. They limited it with the electoral college. They limited it with these five votes. Anything else is undemocratic. 
It is not that the filibuster is constitutional, so much as the Founders thought it obvious. They thought that it went without saying that they shouldn't be used. Or at least, they should not be used without a democratic method to end them. Only five votes are so important that they supersede democracy.
I am all about being deliberative and methodical in any approach to lawmaking. But we cannot let that excuse stymie the People’s legislation. There is a reason that most Americans don’t believe Congress does anything. It’s because they rarely do anything of substance. Doing things of substance need supermajorities or, in my opinion, bad faith loopholes.
We cannot be afraid of mistakes. Will they happen? Yes. Bad laws will be passed. Bad laws have always been passed. Bad laws will be repealed or replaced. That is the purpose of two houses of Congress. They provide a check on each other’s bills, but that is weakened when the Senate cannot fulfill its purpose. 
More importantly, you cannot know a politician’s motives until you make them take the tough votes. You cannot know who bought a politician until you force them to vote on controversial things. They can talk and talk without ever saying anything. They cannot deny their vote. We must insist they do their job instead of hiding behind filibusters.
Alexander Hamilton had something to say about supermajorities in Federalist #22. “Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail.”
He further defined it in a more contemptible manner: “…a poison. To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision) …”
The Founders would be horrified by how undemocratic Congress has become. They would be appalled at the way we use the filibuster. Hell, I’m pretty sure Thomas Jefferson would just be appalled by the current decorum of Congress.
The Senate has become a retirement home for aging politicians. They get to sit around, get paid, and look important while doing nothing. They hide behind the filibuster instead of voting to improve the People’s government. They hide behind the filibuster and blame their dysfunction on the other party. They hide behind the filibuster, so they don’t alienate those that bought their vote. 
It looks like filibusters are still pirating to this day. 
Pirates are obstructing the People’s government. Pirates are holding the People hostage. Pirates are enjoying ill-gotten gains, not from plunder, but from those who buy their vote. 
It’s long past time to sink their intentions. 
We can only do that together. We can only do that with one voice. We can only do that by reminding them who they work for.
We the People are the power.