G. The Territories Are Excluded From the Senate Entirely The territories have no role whatsoever in the Senate. It is in the Senate where the small States were given their ultimate protection against the will of the majority. Two Senators from each State provide the small States with an enormous equalizer and bring the people of these States most directly into the political process. With a majority of only 51, the importance of having two Senators is obvious. For instance, the Senate recognizes a Senator's privilege to delay or block consideration of Legislation or nominations by placing a "hold" on the matter.' The privilege to place a hold on a bill is not provided for in the Senate's rules but is an informal product of custom and courtesy. Essentially, a senator "asks" the leadership of his party to put a hold on a bill, in other words, to object to consideration of it until the Senator's concerns are addressed. See Bach, supra at 6, n.8. In practice Senators often place holds on bills for reasons that have nothing to do with the bills themselves. Senators may be seeking concessions on other bills or they may object to a particular appointment. This privilege is recognized because under Senate rules any Senator may object on the floor to consideration of a bill or nomination thereby requiring a vote of the full Senate to bring the bill up for consideration. Id. To avoid the necessity of a vote, See Stanley Back, Congressional Research Serv., The Legislative Process on the Senate Floor: An Introduction, at 6 (Mar. 31, 1986, revised July 1, 1991). the Majority Leader customarily asks for unanimous consent.' If there is even one objection the bill may not be considered under If the Majority Leader cannot secure unanimous this procedure. consent, he must call for a vote on the motion to proceed to consider the bill. A simple majority may approve the motion, but debate on the motion is unlimited. This is the point at which a filibuster is possible. Id. Because Senate rules permit senators to retain the floor for as long as they have anything to say and are present to say it, Senators may engage in endless filibuster to prevent a vote on the motion to proceed. The Senate may only close debate (cloture) with the support of three-fifths of the Senators, or 60 votes. The hold serves as a behind-the-scenes mechanism for working out objections before the bill comes to the floor. Id. The holding privilege does not mean every Senator has an absolute veto over all legislation or nominations, but it does mean each Senator has some bargaining leverage before the legislation or nomination is brought to the floor. See Tiefer, supra note 9, at 563.10 According to a Congressional Research Service study, 98% of the matters laid before the Senate proceed for consideration by unanimous consent. This fact suggests that the Majority Leader probably honors almost all holds. See Charles Tiefer, Congressional Practice and Procedure: A Reference, Research and Legislative Guide, at 562-63 (1989). 10. Another opportunity for delay is the "layover rule." Tiefer, supra, at 566. When a Committee approves legislation or a nomination for floor consideration, the bill is accompanied by a Committee Report. Id. at 550. Under Senate rules, all reports "shall lie over one day for consideration," unless the Senate waives the requirement by mutual consent. In addition, there is a layover requirement of three calendar days to give Senators time to review reports. Id. at 566. Both layover rules can only be waived III. THE POLITICAL DILEMMA FACING THE TERRITORIES Clearly, the people of the territories are substantially disadvantage by their exclusion from the political system. Without effective participation in the political process, can the people of Guam, or any other territory seeking a change in political status short of Statehood or independence, ensure that the relationship they ultimately agree to will be honored by the United States? The Commonwealth of the Northern Mariana Islands (CNMI) and the United States have been locked in battle for several years now over exactly this issue. The CNMI believes it established certain principles of self-government which were unalterable. States disagrees and cites to the plenary power of the Territorial Clause and 90 years of court precedent holding that there are few inhibitions on Congress' discretion toward the territories. The United The dilemma facing Guam and the other territories seeking political status changes short of Statehood or independence is how to prevent the legislation authorizing the change from being treated as simply another Organic Act, subject to the unfettered discretion of a Congress in which they do not vote or to unintended interpretation by an Executive Branch over which they have no real political influence. In Guam's case, its transition to Commonwealth will result from legislation adopted by Congress and approved by the people of Guam. The problem, of course, is that, under generally accepted legislative and legal principles, with unanimous consent and offer a Senator another procedural opportunity to attack legislation. legislation is binding only on the Congress which adopts it. If, then, the people of Guam agree to a Commonwealth relationship based on an Act of Congress, can they be sure that a future Congress, reacting perhaps to the politics of the moment or new domestic or international political pressures, would not reach into the legislation and alter it unilaterally? Over the last two and one half years, Guam's Commission on Self-Determination, at the request of Congress, engaged in negotiations with the Bush Administration on the terms of the draft Commonwealth Act. During these negotiations, the Commission's Chairman, Governor Joseph Ada, repeatedly raised his concern that the rules frequently seem to change toward Guam and that Guam had little leverage to stop a change once proposed. He explained how Guam, in the past, has had the rules applicable to it unilaterally altered to suit the political and economic interests of others with greater influence in the Congress or Administration. He argued, therefore, for a form of guarantee which protects whatever agreement is ultimately reached. To this end, he asked that there be no changes in the partnership without the mutual consent of the people of Guam. He explained that this was the only workable option for a people permanently precluded from participating in the political system. The Bush Administration resisted this proposal. The Governor was told to trust and have faith in the Government, and that once agreements were reached significant changes would be difficult to get through the political process. In essence the Bush Administration was reassuring the Commission that Guam would not again be subject to the politics of the moment. IV. MUTUAL CONSENT IS THE ONLY REASONABLE ALTERNATIVE A. Changes to the Terms of Commonwealth Require Mutual Borrowing from precedent established in the CNMI's Covenant," the draft Guam Commonwealth Act seeks agreement from the United States Congress that the terms of the Act will not be altered without the mutual consent of Guam. Section 103 of the Act reads as follows: In order to respect the self-government The Mutual Consent provisions of the draft Commonwealth Act are essential to Guam's self-government goals, and without it, the draft Act would be little more than another Organic Act. The draft Act is intended to redefine completely the political relationship between Guam and the United States. It is not an extension or 11. Section 105 of the Covenant to Establish Commonwealth of the Northern Mariana Islands in Political Union with United States of America, Pub. L. 94-241, Mar. 24, 1976, provides only for a limited application of mutual consent. It states, "[i]n order to respect the right of self-government guaranteed by this Covenant the United States agrees to limit the exercise of that authority so that the fundamental provisions of this Covenant, namely Articles I, II and III and Sections 501 and 805, may be modified only with the consent of the Government of the United States and the Government of the Northern Mariana Islands." |