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I was disheartened to learn that Olympia Snowe, the senior U.S. senator from Maine, has decided to not seek reelection. The polarization of the Senate has proved too distasteful for this moderate Senator one who regularly crossed the aisle in search of common ground.

I recall taking my son to witness the U.S. Senate in session when he was a young boy. We were very fortunate because moderate/conservative Senator Orin Hatch and liberal Senator Edward Kennedy were debating some legislation. They were both vociferous in their point of view. As the session came to a close I told my son who had taken notice of the vehemance to watch both Senators. Their strong language was gone and they laughed as good friends. This I told my son was the Senate.

It is no more.

Cloture, a procedure to cut-off debate embodied in Senate Rule 22, altered the Constitutional balance of one Senator one vote. It is not the reason for the polarization, but it is a factor in the practice of it.

The Constitution under Article I  was designed to protect underpopulated states by affording each state two Senators and each senator one vote. At the time ithe Constitution was written the rules of the House and Senate only required majority vote to cut off debate by moving the prior question. This changed in 1804 when supposedly by accident Vice President Aaron Burr, while presiding over rule changes in the Senate, removed the prior question motion and thus permitted unlimited debate in the Senate. At the time Maine and Delaware had populations which were considerably less than the other states. Nonetheless there was a fair balance of population amongst the States of Virginia, Pennsylvania and New York (representing 23% of the number of States) being more dominant. Given the small number of States the Senate was a more deliberative body that in fact was choosen by State legislators. Unlimited debate in the Senate was not much of a problem. 

During the polarization of the country starting in the 1830s there were a few filibusters. The procedure did not bloom until after the Civil War. As 9 underpopulated states were added in the 1880s and 1890s (CO;ND;SD:MT;WA;ID;WY;UT) the Senate became a larger body. Colorado had the largest resident population of the 9 in 1890, but it only accounted for 1% of the total U.S. population. In 1790 Rhode Island by resident population was the smallest state and it accounted for 2% of the U.S. resident population at the time. Wyoming with 15% of Colorado’s 1890 population did not even account for 1% of the population and received 2 Senators. This was also true for Dakotas. These small states accounted for 18% of the Senate in 1900, slightly above the 15% that Delaware and Rhode Island were in the original 13. In the period from 1891-1905 a problem bigger than unlimited Senate debate was the election of Senators. State legislators deadlocked in balloting for senators. There were nearly 50 such deadlocks resulting in States having only one Senator for months, or in the case of Delaware not having any at all for 2 years. It was not unlike the problem with filling Federal judgeships today.

The need for cloture came soon after the 17th amendment to the Constitution, when Senators were required to be directly elected by the voting populace and not by State legislators. Republican filibuster of President Wilson’s proposal to arm merchant ships during World War I backfired and Rule 22 of the Senate, requiring cloture at 2/3rds of the Senate members was passed. The decision to provide for a supermajority was the result of compromise with a minority composed of a few Republicans and one Democrat Committeemen. A simple majority was supported by 40 Senators at the time. Filibusters did occasionally occur after that , but they began to accelerate after the 1975 change in Rule 22, reducing cloture to 60 members. With 2/3rds the likelihood of cut-off was remote so perhaps there was less need for posturing and allowed moderates to vote their conscience or their constituencies.

While both parties have used it, statistically since 1975 Republicans have used cloture more. It is most noticeable during the first year of a Democratic Presidency, the period when significant legislation can usually be passed in current times. Republican usage to some degree is consistent with their base being located in many of the small population states. While there is motion practice that can circumvent cloture, with population disproportionately rising outside these smaller states, the concept of cloture becomes inconsistent with equality amongst the states. The smaller states however not all Blue states. The States which have only one Representative in the House but have 2 Senators are: Alaska; Delaward; Montana; North Dakota; South Dakota; Vermont; and Wyoming. The States which presently have 2 Representatives in the House are: Hawaii; Idaho; Maine; New Hampshire and Rhode Island. Cloture at least gives the States with one Representative more than one vote per Senator on legislation, because a supermajority is required. While cloture is not unconstitutional because on the final vote it is still one Senator one vote,  likes seniority on Committees it can undermine the spirit of the Constitution by giving the underpopulated States more voice than the voice of the majority of the voting populace. 

Cloture is not the sole problem, nor are the underpopulated States. In many cases it is just extreme and closed minded thinking, added to a polarizing media. Senator Snowe is from an underpopulated state. Election in the underpopulated States because of cloture take on added importance. It is not necessary to control a majority of the Senate, if you can control the underpopulated States (those with 2 or less Representatives). Seven of the twelve Cloture States (AK; MT; ND; SD; WY; HA; ID) became States after 1880. A few have had a liberal Senator, some have had moderates and others conservative Senators. On balance they are moderate to conservative as a group.

Senator Susan Collins, the junior Senator from Maine, like Senator Snowe is a moderate who will cross the aisle. Whether the departure of Senator Snowe and other moderate Senators will have a chilling effect on her inclination to do so, remains to be seen. The election of Senator Snowe’s replacement and of those Senators in other Cloture States is very important to the balance of the Senate. Supermajority cloture is a procedure whose time has passed. As the population of this country grows the disproproportionate power given by rules such Rule 22 will further disenfranchise the country’s majority. Article I was designed to protect the minority and has provided often frustrating balance that is the hallmark of our democracy. Rules that extend minority power beyond is not strict construction. Points of view that are absolute and unwaivering can only lead to stagnation at a time of crisis for this country.

This country has lost a stateswoman. I was not a constituent and I did not always agree with her. I thank her for the service she rendered the United States. I will miss her and like Hamilton and Madison in the Federalist Papers, I hope that those who will remain and become Senators, will focus on “United” in United States.

Some of the While it would not happen, a little balance could be achieved by limiting cloture to those states which have at least 1% of the U.S. population registered to vote. The composition of the Senate under Article 1 will still protect the small states, it just will not disenfranchise the majority.