Less is more: The tyranny of the supermajority

Among the central tenets of democracy are the principles of majority rule and minority rights. Today, there are many political players who actually prefer to obstruct or confront the system rather than facilitate its operation. As a result, the ability to govern is dramatically frustrated, as seen in the behavior of the Republicans in the U.S. Senate.

On Feb. 4, once Scott Brown was sworn in as the new senator from Massachusetts, the Republicans attained a 41-vote “blocking” minority for virtually all activities in the Senate. While Democrats previously could cobble together 60 votes to conduct Senate business, their maneuverability was dramatically reduced with the loss of the late Ted Kennedy’s seat to the Republicans.

Almost on cue, Sen. Richard Shelby (R-Ala.) invoked a Senate rule permitting him to block pending appointments. Shelby immediately stopped the further processing of 70 pending Obama executive and judicial appointments. Beyond any ideological differences, Shelby invoked this rule (which would require 60 votes to overturn) to pressure the Obama administration to deliver a reported $40 billion of defense- and law enforcement-related facilities to his state of Alabama.

This concept of a supermajority has a history that predates the debate over Senate rules on cloture. In 1782, the Articles of Confederation required nine (of 13) states to agree on all major issues and unanimity to amend the Articles. America’s early leaders feared the tyranny of the majority after having lived for so long under a British rule which ignored their rights.

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In the Senate, the supermajority only emerged as a serious political tool in 1919. During Senate debate over the Versailles Treaty, Republican opposition forces used this device to delay and obstruct Senate action.

During the 1950s and ‘60s, Democratic “Dixiecrats” who sought to filibuster civil rights legislation forced a series of bipartisan cloture votes to overcome their opposition. Nevertheless, their actions so frustrated Democratic leaders that they led the fight to change the Senate filibuster rule. In 1975, the Senate rules were changed by Democrats who held a 61-vote majority — paradoxically, to block some of their own party members’ initiatives.

These rule changes were enacted largely through a bipartisan effort led by Senators Walter Mondale (D-Minn.) and James Pearson (R-Kan.). Mondale was following in the shoes of an earlier proponent of reform, then Senator Hubert Humphrey. Their move meant cloture could be invoked with just 60 votes, rather than requiring the votes of two-thirds of those present in the chamber Senate.

This history clearly shows both the Democrats and Republicans have engaged in obstructionism. In doing so, majority rule has been re-defined as supermajority rule — or more accurately, inaction. As a consequence, far greater power is placed today in the hands of the minority power, which runs counter to the very essence of democratic theory and majority rule.

In a very different setting, democratic theory and values are also being challenged. In Israel, Rabbi Eliezer Melamed, the rabbi of the hesder yeshiva at Har Baracha, is testing the boundaries of free speech and freedom of assembly. Melamed appears once again to have urged insubordination by religious soldiers in the IDF. Melamed has suggested that his yeshiva student/soldiers follow the religious directives of their civilian rabbi, and not those of the military rabbis.

As in the United States, the ruling party is timid in the face of a threat to democratic rule by a vocal, emboldened minority. While public protests and challenges even to national security policy must be tolerated within a democracy, there are limits. In the Melamed case, protests and confrontations with the law of the land demand that violators be held accountable to the law. So far, Israel’s democratically elected leaders haven’t shown an inclination to enforce these proper boundaries.

Perhaps at the end of the day, one needs to consider that perhaps Winston Churchill had it right: “[D]emocracy is the worst form of government except all the others that have been tried.”