“Oh, Brad! Brad, my darling, how could I have done this to you? Oh, if only we hadn’t made this journey. If only the car hadn’t broken down. If only we were amongst friends . . . or sane persons. Oh, Brad, what have they done with him?”
—Susan Sarandon as Janet Weiss in The Rocky Horror Picture Show
God bless my junior Senator, Ted Cruz, for being one of the very few in the Senate GOP contingent with the stones to stand up and try. I have no idea what John Cornyn—who is all over his website and social media saying he supports defunding Obamacare—is doing leading the effort to stop him. Voting for cloture and ending Cruz’s filibuster—which requires 60 votes Harry Reid doesn’t have without Cornyn’s help—only allows the Democrats to get to a vote on an amendment adding the funding back in, where Cornyn knows full well Reid does have the 51 votes he needs even over Cornyn’s objection; Cornyn’s Nay at that point is a hollow gesture, and for my life I don’t understand why Cornyn and the GOP establishment in the Senate would be so willing to cast down the only weapon they have left and quit the field.
But looking at the split between my State’s two Senators got me thinking: but for a grossly unfortunate Constitutional turn a century ago, we might well be in a different position today. So I wanted to backtrack and cover a little history and civics.
Recall that the attendees at the Constitutional Convention in 1787 were not sent as at-large representatives of the population. They were sent as delegations selected by their respective State legislatures, and their specific task was to represent those States as independent sovereign entities. Indeed, one of the primary sticking points in the Constitutional debates was how these States, particularly smaller ones, would be able to protect their sovereignty once power was ceded to a central federal government.
The Framers’ solution, in their wisdom, was to create a bicameral legislature; two houses, with the Senate being the chamber in which the States, as States, would be represented. As James Madison explained in Federalist No. 10:
“The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate[.]”
Thus, Article I as originally written provided that the Senate would be comprised of two Senators from each State, “chosen by the Legislature thereof.” This gave each State as an independent sovereign equal representation within the federal government, embodied in members selected by, and ultimately responsible to, the governments of those States. That was to be the safeguard of the States’ sovereignty and their retained powers under the 10th Amendment. That, ultimately, is what federalism is.
But a funny thing happened on the way to Utopia.
Progressives recognized that this structure posed a barrier to the imposition of their agenda. Wouldn’t it be simpler if they could bypass the buffer of the State legislatures so they could use their populist rhetoric to elect Senators directly by popular vote? So in 1913 they pushed through the 17th Amendment, which substituted at-large elections in place of the selection of Senators by the State legislatures, and with it eliminated any responsiveness the Senate had to the States as sovereigns. The entire point of a bicameral Congress was defeated.
So what does this have to do with Obamacare and Ted Cruz?
At 7:05 a.m. on Christmas Eve 2009, the Senate passed a 2,000+ page bill none of them had read by a vote of 60-39; that bill would become Obamacare. That fact might seem of little importance by itself. But shortly after the President signed the bill into law in 2010, several States sued the federal government to stop its implementation. By January 2011, the number of States that had joined those lawsuits or filed their own had grown to 27. Interestingly, of those 27 States suing the federal government to stop Obamacare, 15 of them had at least one of their Senators vote Aye back in 2009—seven had both Senators vote in favor—22 Ayes in all. In other words, nearly a quarter of the entire Senate voted in favor of legislation that so upset their home State governments that those States joined in litigation to un-do it.
How different might that Christmas Eve vote have been had there been no 17th Amendment, such that those Senators were representative of, and responsible to, their home State governments? I have no illusions that you would have seen a much different result for the delegations from Washington or Colorado, both of which have wholly lurched Leftward in recent years. But consider the State-level environment in the remaining 13 States suing the government to un-do a vote by their own Senators. Every one of those States—Alaska, Florida, Indiana, Louisiana, Michigan, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Dakota, Virginia, and Wisconsin—have Republican governors, and legislatures controlled by the GOP.
One has to think that under those conditions, a Senate with members subject to selection by those State governments would have yielded a very different vote. Even if you indulge in the assumption that the Senate delegations for Michigan (2 Ayes), Nevada (1 Aye), and Pennsylvania (2 Ayes) would have voted the same way, you still get a flip of 13 votes, resulting in the bill being defeated 47-52. You could further assume—although I think it unlikely—that both Virginia Senators would still have voted Aye, and the Democrats still would have come up one vote short. And recall that the 2009 Senate vote was on strict party lines; the Democrats had no defections, meaning that in a closer or losing vote, they had no arms left to twist. Meanwhile, Jim Bunning (R-KY) missed the vote, and one suspects if he were going to have been the difference-maker the GOP could have found a way to persuade him to come in from the bullpen.
But for a little-known alteration in the fundamental structure of the Republic, Senator Cruz might not have found himself in the well of the Senate, all-but alone on the front line of a fight he shouldn’t have had to be fighting.
Go get ‘em, Ted. Some of us citizens are behind you all the way.