Saturday, November 9, 2013

Amendment 28: What it Would Do and How

The Problem
The Solution
Text of proposed Amendment 28


This Blog has a single, narrow purpose. It proposes and discusses a constitutional amendment to restore our democracy, that is, majority rule in our Congress. It invites changes to the amendment and comments on it, as long as they are civil and to the point. (All comments are moderated, and political rants will be rejected.) This blog tries to start a discussion of whether we have a real democracy now, and, if we don’t, how we could rebuild one.

The Problem

Right now, we don’t have majority rule in either House. Our House of Representatives has an unwritten rule that allows a minority of about 26% to block legislation. In the Senate, a 41% minority can block even consideration of any bill, ratification of any treaty or presidential appointment, whether of an executive official, judge or justice of the Supreme Court. And by putting a “hold” on a bill, appointment or treaty ratification, a single senator can effectively block it, even in secret.

Not only do these rules allow minorities or single senators to block the result. They let a minority or single senator block even debate and voting. The bill, issue or appointment never gets to the floor of the House or Senate. Often the public and some members don’t even know what it might have been. This is government by a minority, or by individuals, in secret.

The Senate blocking procedure is called a “filibuster.” But today it’s nothing like what the old Jimmy Stewart movie Mr. Smith Comes to Washington portrayed. No single senator has to stand on his feet and speak for hours, let alone days. The minority leader just informs the majority leader, and voting on the bill, appointment or treaty is blocked, unless the majority can come up with 60 votes out of 100, or 60%. Minorities now use this blocking procedure at 142 times the rate used during the period 1917 to 1972. So-called “filibusters”—without actually speaking at length of even ruffling the minority’s feathers, have now become routine.

The custom of Senate “holds” is even worse. It allows any single senator to delay or block mere consideration of a legislative bill, presidential appointment, or treaty, solely on his or her individual initiative. The result is an effective “veto” power, which any one of our 100 senators can exercise.

The Senate’s official Website downplays the significance of holds by defining them as mere warnings of impending filibusters. But in fact holds have become even more numerous and more destructive of democracy than actual filibusters. At one point Senator Shelby of Alabama put holds on seventy (70) presidential appointments in an attempt to extract concessions relating to a local military base and terrorism policy. More recently, senators put holds on the appointment of Janet Yellen as Fed Chief two other appointments, one executive and one judicial.

As every civics student knows, our Constitution (Article I, Section 7) gives veto power only to our President. And it allows Congress to override his or her vetoes by a two-thirds vote in each House of Congress. In theory, a “hold” can be similarly overridden, like a filibuster, by a 60% vote. [see end of article] But when senators pile on numerous holds, as happens regularly today, there are not enough hours in the day to hold the necessary cloture votes and override them all. In that case the “holds,” which sound so innocuous in theory, become effective vetoes in practice.

Article I, Section 5 of our Constitution gives each House of Congress the power to make its own procedural rules. But in making the rules, our pols have undermined our Constitution and our Founders’ plan. They have undermined the very basis of democracy.

No high school or college class, no state legislature or city council, and no corporate board of directors, for profit or not, operates this way. If any did, it would be just as impotent and deadlocked as our Congress.

To my knowledge, not a single foreign legislature, anywhere in the world, has procedural rules as bizarre as ours. If you set out to design a system in which individual legislators and tiny minorities can thwart legislative action and throw sand in the gears of government, you could hardly do a better job.

There is no way we Yanks can slow, let alone halt, our national decline under these rules. When your rules encourage, let alone permit, sole legislators and tiny minorities to control the majority and extort the chief executive, you don’t have government. You have anarchy.

The problem, as an earlier post on another blog explains, is not partisanship or lack of civility in the Congress. It’s these rules, which abrogate the most basic principle of democracy—majority rule—and make every senator the simulacrum of a president, without a president’s accountability to the whole nation.

The Solution

The solution is a constitutional amendment to restore majority rule to each House of Congress and to keep it in place. Proposed Amendment 28 would do just that, in four ways.

First, it would require each House of Congress to act by a simple majority vote, except in cases for which the Constitution now prescribes a greater majority. These include: veto overrides, constitutional amendments, and (in the Senate) “advice and consent” to presidential appointments and ratification of treaties.

Second, the amendment would make sure that any substantial minority could be heard. It would allow any 30% or greater minority in either House to force a floor debate and vote on bills or (in the Senate) presidential appointments or treaties. The minority could force a debate and vote on the same thing every ninety days, but no more often. So it couldn’t gum up the congressional works by repeatedly asking for votes on proposals bound to fail. And it couldn’t block votes by the majority.

Third, proposed Amendment 28 would explicitly abolish filibusters, the “Hastert Rule,” and Senate holds and prohibit Congress from re-enacting them.

Fourth, the Supreme Court would have the power to enforce the amendment, upon petition by members of Congress. But it could only affect congressional procedure, not the substance of any bill or treaty or the identity of any appointee. So the Court could insure that our Congress played by the basic rules of democracy, but would not meddle in politics.


Next to majority rule, the most basic principle of democracy is accountability. When our congresspeople and senators vote, they ought to have to put their votes on record. That way, they would be accountable both to their own constituents and and to the larger nation.

That once happened but no longer does. In theory, votes on so-called “filibusters”—called “cloture” votes—are public. But in practice our media seldom reports the vote of individual senators. All our media note is whether the so-called “filibuster” blocked the legislation.

Sometimes we get the name of the leader (usually the Senate minority leader) who led the filibuster. Seldom do we get the names of the rank and file who voted to block all debate and any voting on a bill that maybe a majority of senators wanted passed.

The current rules in the House, and the Senate holds, are even worse. House votes not to debate or vote on a bill can occur in party caucuses, secretly. So can Senate holds.

This is government in the dark, with no accountability to the public. Even their own constituents, let alone the nation as a whole, often don’t know what congresspeople and senators are up to. The result is something more like the old Soviet Union than what we Americans learned in our civics classes growing up.

Proposed Amendment 28 would change all this. It would require every vote in the House or Senate, and in their committees and subcommittees, to be made public. Members of Congress could make exceptions and impose secrecy for reasons of national or economic security. But their votes for secrecy would have to be made public (without disclosing the subject matter, except generally).

These simple rules could restore the basics of our democracy. They would let any minority of 30% or more force a floor debate and vote on any bill, treaty or presidential appointment. And they would require the votes to be made public, so that every congressperson and senator would have to be accountable. Majorities could rule, but minorities would have their day and hold the majority accountable, without killing majority rule.


Their is nothing partisan in these rules or proposed Amendment 28. No party can expect to be in the majority forever. These rules would allow any substantial minority, including today’s Tea Party, to force a vote on measures it favors and make the majority party’s members publicly responsible for their positions.

But at the same time, these rules would prevent a minority from stopping the majority even from voting, let alone governing. They would protect the minority’s rights to force public accountability, while allowing the majority to rule. That’s the way democracy is supposed to work, and the way our Congress no longer does.

Text of proposed Amendment 28

As readers can see from my profile, I’m a retired lawyer and law professor with 38 years of experience, including law school. I spent a large part of my legal practice drafting agreements and (in a few cases) even state statutes. So I think I have the experience to take a crack at drafting a constitutional amendment to restore our democracy. My draft follows.

No draft of any legal document is ever perfect. So I expect and welcome comments and suggestions, including minor ones like changes in wording and punctuation.

Before presenting my text, I’d like to offer a few points of explanation. First, I tried to match the style and generality of our original Constitution and Bill of Rights, taking into account changes in the English language and usage over two centuries. Second, I adopted (a bit more than our Founders) the approach of trying to exclude possible misinterpretations in advance. This approach may make my language a bit more complex and detailed than our Founders’, who trusted each other much more than we do today. But I tried to keep my draft of Amendment 28 from departing too much from the simplicity and power of their prose. At least it fits easily on a single page. Here is the draft:

Amendment 28: Majority Rule and Accountability
1. Except as this Constitution explicitly requires a greater majority, each House of Congress shall act by a simple majority of members present and voting, provided that a quorum is present. For purposes of determining a simple majority, an abstention shall be deemed a vote.
2. A minority of thirty percent or more of the members of either House of Congress then in office shall, by written petition or floor action, have the power to bring any duly registered bill, presidential appointment or treaty ratification to the floor of that House for debate and a vote, provided that: (1) a quorum is present, and (2) the same or substantially the same bill, presidential appointment or treaty ratification shall not have had a floor debate and vote within the previous ninety days.
3. No individual member of either House of Congress shall have power to delay, block or modify any bill, presidential appointment, or treaty ratification except by collective action with other members in committee, subcommittee or that entire House, in accordance with duly adopted written rules of that House.
4. Filibusters, Senate holds and the Hastert Rule in the House of Representatives are hereby abolished.
5. Every vote of every committee or subcommittee or of the whole of either House of Congress, on every pending bill, presidential appointment or treaty ratification, shall be made public forthwith, along with the name of each member voting yay, nay or abstaining. Each House may make exceptions, by a simple majority vote, on a case-by-case basis, for matters that require secrecy for the purpose of national or economic security.
6. This Amendment shall take effect ninety days after ratification by three-fourths of the several States, and each House shall enact conforming modifications to its procedural rules before this Amendment takes effect. Any ruling, order or decision of any member or officer of either House of Congress in contravention of this Amendment shall be null and void.
7. Upon the written petition of any ten or more members of the Senate, or any thirty or more members of the House of Representatives, the Supreme Court shall have the power to enforce this Amendment by procedural orders, including changes to the written rules of either House. Any such orders shall affect only the procedure of the House involved, and shall not affect the substance of any pending bill or treaty or the identity of any executive or judicial appointee. The Supreme Court shall expedite adjudication of every such petition, giving it priority over any other business before the Court.