[OPINION | Deep Dive] Why the Senate race mattered so much

 

 

It’s all over but the shouting – more like wailing, actually; and ranting, definitely. The 2019 National and Local Elections are over and in the one race that mattered – the Senate – the President’s slate swept the field. Why did the Senate race matter so much this year?

This week’s Deep Dive looks into that question and proposes some possible answers.

Two houses divided

When the 1986 Constitutional Commission decided to adopt a bicameral legislature following the American model, it was clear that the Senate would be the smaller house of Congress, with only 24 members elected at large under Section 2 of Article VI of the 1987 Constitution. 

Under the constitutional architecture, however, it is clear that both houses of Congress would share legislative power generally under a “separate but equal” formula, save for specific instances when the Constitution vests specific powers exclusively to one house or when Congress specifies that each house is to vote separately.

In two specific instances, the House of Representatives and the Senate are given specific exclusive powers. Under section 24 of Article VI, the House of Representatives is given exclusive power to initiate all bills on appropriation, revenue or tariff, or those increasing the public debt with the Senate given the prerogative to propose or concur with amendments. 

On the other hand, under section 21 of Article VII the Senate is given the exclusive power to bind the country to international obligations arising under treaties or international agreements entered into by the President with a vote of 2/3 of its members.

Also, in two specific instances, the Constitution provides that both Houses must act together but vote separately.

• Article VII, section 4, which constitutes Congress into a national canvassing body for the Presidential elections, specifies that Congress shall break a tie between two candidates for President or Vice President through a majority vote with each house voting separately.
• Article VII, section 9, which gives to the President the option to choose a Vice President from among the members of either house of Congress in the event of a vacancy in the Office of the Vice President, specifies that Congress shall confirm the President’s choice of a Vice President by a majority vote of Congress voting separately.

There is only one instance when the Constitution requires that Congress vote jointly. This is under Article VII, section 18 which gives Congress the power to review and/or revoke the President’s proclamation of martial law and/or suspension of the privilege of the writ of habeas corpus.

Separate and unequal

The constitutional architecture of acting together with each house sharing equal legislative power becomes problematic in instances when the Constitution does not specify whether the vote is to be made separately or jointly.

For instance, Article XVII, Section 1 of the 1987 Constitution provides that one of the modes of amending or revising the Constitution is by a 3/4 vote of all the members of Congress, without providing whether each house is to vote separately or both houses are to vote jointly. Section 3 of Article XVII also provides that Congress may call for a constitutional convention with a 2/3 vote of all its members, or by majority vote, submit to the electorate the question of calling such a convention. Again, the Constitution does not specify whether the vote is separate or joint.

This question is not one of semantics so much as it is one of power.

If the vote is to be taken separately, then each house is “separate but equal” in power as the entire Senate – no matter if it is the smaller house at 24 members – possesses equal power as the House, with at least 250 members. The vote of the Senate, as an institution, becomes meaningful because its concurrence or dissent would determine whether a measure or act would pass.

If the vote is to be taken jointly, however, then the houses are “separate but unequal” in power because the entire Senate, with only 24 votes, cannot hope to meaningfully affect any decision of the majority of the House of Representatives. Even were it to act unanimously, the 24 votes of the Senate would be drowned out by the 125 votes (assuming only 250 members of the House) of the House.

The significance of the shutout

The impending sweep by the President’s slate (with the exception of Senator Grace Poe, an independent) of the 12 Senate slots becomes significant in light of the perception that the Senate remains to be the only holdout in the bandwagon that started in 2016. It is only in the Senate that the President does not enjoy a supermajority in numbers as well as in views.

With the 12 vacancies in the Senate, only those senators elected on May 10, 2016, remain. Of the 12 remaining, only Senators Franklin Drilon, Risa Hontiveros, Leila de Lima, and Francis Pangilinan are with the opposition. Of these 4, only Drilon, Hontiveros, and Pangilinan are actively participating in Senate deliberations and voting as De Lima is still in jail. With no opposition candidates making it to the 12 vacancies, there will still only be 3 active votes (4, if De Lima is allowed to vote) for the opposition.

The President and his allies have made no secret of his desire for charter change, federalism, and the return of the death penalty. The shutout of the opposition makes these targets so much easier now because of the looming supermajority in the Senate. The first order of the day will most likely be charter change.

The quickest way would be to constitute Congress into a constituent assembly, which under Article XVII, section 1, Congress, would require a vote of 3/4 of all its members to revise or amend the Constitution.

This is where the opposition shutout becomes significant.

If the two houses were to vote jointly on a proposal to constitute Congress into a constituent assembly, this would not need much effort as the expected supermajority in the House alone would already be more than enough.

But if the two houses were to vote separately, the Senate would need to have a separate 3/4 vote of all its members, i.e., 18 members. Of the 24 (including De Lima) senators, those opposing charter change through Congress would need 7 votes. There are only 3 clear opposition votes (4 if De Lima is allowed to vote). It remains to be seen if the other 20 senators can resist the lure of being in the supermajority and remain independent.

Under section 3, even the question of calling a constitutional convention would be impacted by the expected supermajority in the Senate. The Congress, with a 2/3 vote, may call for a constitutional convention or by a majority vote, submit that question to the electorate. Two-thirds of 24 is 16, majority of 24 is only 13.

There are only 3 active dissenting votes in the Senate, 4 if De Lima is allowed to vote.

Will there be more dissenting voices, if not votes, in the new Senate? That remains to be seen. – Rappler.com