How the Senate cheats New York


U.S. President Barack Obama (L) speaks between Vice President Joe Biden (R) and former Rep. Gabby Giffords on commonsense measures to reduce gun violence, in the Rose Garden of the White House in Washington April 17, 2013.

Article Highlights

  • The majority of Americans expressed desire to require background checks for gun purchases.

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  • With the gun control provision rejected, the democratic process revealed some flaws in the very nature of the Senate.

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  • This underscores a deeply troubling reality about the Senate: Practically everything now requires 60 votes.

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When the issue of requiring background checks for nearly all gun purchases came up last week in the U.S. Senate, the American people, 90% strong, spoke loud and clear - and the Senate responded. A majority, 54 of the 100 senators, voted in favor of a bipartisan, restrained and reasonable plan to prevent dangerous individuals from having easy access to guns.

Wait a minute, you say - it was rejected! And of course, you are right. Under the combination of Senate rules and leadership agreements, the provision required 60 votes, not a simple majority, and fell six votes short.

In the process, the link between American voters and their elected representatives, the presumed transmission belt of our democracy, was broken.

The process itself reveals some major flaws in the very nature of the Senate - flaws that should make New Yorkers angry on other grounds as well.

First, the 60-vote hurdle. This was not a traditional filibuster, where a minority objects and 60 votes are needed to cut off debate. Sen. Majority Leader Harry Reid had worked out a unanimous consent agreement with his counterpart Mitch McConnell to require every vote on an amendment to the underlying bill to achieve 60.

Reid did this in part to avoid a highly time-consuming set of filibusters which would have required multiple votes and interminable delays. He also was fearful that killer amendments - like a Republican one to allow individuals to carry concealed weapons in any state, no matter their restrictions, if they are allowed to pack heat in a state that has no such limits - would pass with 50 votes and kill the whole thing.

This underscores a deeply troubling reality about the Senate: Practically everything now requires 60 votes. That hurdle is not in the Constitution and was never, ever the norm before the past five years. The Senate rule on filibusters, Rule 22, has been the same since 1975 - and we did not see it used in this fashion for more than 30 years before Republicans changed the practice and changed the culture of the Senate.

But it now means that even when a clear majority of senators favor a bill or a nominee for executive or judicial posts, that is not enough. And in an era of partisan polarization, where minority Republicans act regularly as if they were a parliamentary minority, reflexively voting together in opposition, it means that a majority party is routinely stymied.

Now throw in another factor - one that increasingly gives the shaft to New York and other large and populous states. Population changes in America, where smaller states are losing population relative to the rest of the country but retain their leverage in the Senate, where each state has two senators, are inexorably giving more and more power to fewer and fewer Americans.

In so doing, they are skewing results towards states that are mostly rural, largely white and have values, especially on social issues like guns, immigration and abortion, distinctly different from those of New Yorkers, Californians, Ohioans, Floridians and a wider majority of Americans.

As The Washington Post's Ezra Klein and Dylan Matthews have pointed out, when the Senate was created, the largest state, Virginia, was 12.65 times the size of the smallest, Delaware. Today, the largest state, California, is 66 times the size of the smallest, Wyoming.

Matthews has noted that in today's Senate, senators representing less than 18% of the American people can create a majority. And if senators from the least populous 20 states get together, they can filibuster anything to death. And they represent barely more than 11% of Americans!

There were, in the end, 46 senators, not 41, who blocked action on the universal background check proposal. The four Democrats (not including Harry Reid, whose no vote was for purely procedural reasons) and 41 Republicans represented less than 37% of the population and, of course, were overwhelmingly from Republican-oriented states.

New York's Chuck Schumer has proven repeatedly in recent months that he is a key bridge-builder in the Senate, playing a crucial role on the gun and immigration issues, matching Republicans and Democrats who can find common ground and are willing to compromise. His influence in the Senate is outsized for an individual senator.

But the combination of partisan polarization, the misuse and abuse of the filibuster to thwart majority will and the increasing and troubling skew of power in the Senate to small and unrepresentative states compared to earlier eras in American history are now outweighing that influence. New Yorkers have reason to be angry at the Senate's failure. They have reason to be angrier at how the system is skewing against them.


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About the Author


Norman J.
  • Norman Ornstein is a long-time observer of Congress and politics. He is a contributing editor and columnist for National Journal and The Atlantic and is an election eve analyst for BBC News. He served as codirector of the AEI-Brookings Election Reform Project and participates in AEI's Election Watch series. He also served as a senior counselor to the Continuity of Government Commission. Mr. Ornstein led a working group of scholars and practitioners that helped shape the law, known as McCain-Feingold, that reformed the campaign financing system. He was elected as a fellow of the American Academy of Arts and Sciences in 2004. His many books include The Permanent Campaign and Its Future (AEI Press, 2000); The Broken Branch: How Congress Is Failing America and How to Get It Back on Track, with Thomas E. Mann (Oxford University Press, 2006, named by the Washington Post one of the best books of 2006 and called by The Economist "a classic"); and, most recently, the New York Times bestseller, It's Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism, also with Tom Mann, published in May 2012 by Basic Books. It was named as one of 2012's best books on pollitics by The New Yorker and one of the best books of the year by the Washington Post.
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