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Save the Filibuster!

Tuesday, January 25, 2011

In an age of intensely polarized politics, the filibuster assures that a genuine consensus exists for Congress to move forward.

Whoever said that people seeking to make trouble should not underestimate the possibilities of “reform” would smile in acknowledgement of the progressive “reform” community’s latest target—the Senate filibuster. The usual “coalition” (another dead giveaway term) of labor and Left-activist groups has organized around the banner “Fix The Senate Now” to advocate changing the Senate’s 60-vote filibuster threshold that currently allows the minority party to hold up legislation and key personnel appointments to the judiciary and executive branch.

Never mind the hypocrisy of folks who now lament the filibuster after having defended it from Republican threats to curtail its use against many of President George W. Bush’s judicial appointments a few years ago. Majorities are always frustrated when a determined minority uses—and occasionally abuses—the rules to thwart the majority. And it is unquestionably the case that using the once-rare filibuster has become frequent in recent years by both parties, changing the Senate into a chamber now requiring a de facto 60-vote supermajority for nearly everything. Why has this happened? Is changing the rules the right remedy for abuses? And does using the filibuster, even in its frequent form just now, thwart the rightful purposes of our constitutional design, or in fact fulfill them?

We should always beware of seemingly neutral ‘process reform’ sold as a means of making government more ‘effective.’

We should always beware of seemingly neutral “process reform” sold as a means of making government more “effective.” Process reforms of this type are always a masquerade of the one-way ratchet to make it easier for government to acquire more power and do more things without having to argue openly for the additional power. The coalition Left is enraged that its key agenda items such as card check, the DREAM Act, the public option in the healthcare bill, tax hikes for the rich, key Obama appointments, and many other items fell victim to Republican filibusters.

Advocates of filibuster reform, whose ranks include my distinguished American Enterprise Institute colleague Norm Ornstein, do not propose abolishing it completely and having the Senate operate as a pure majoritarian body like the House, with severely limited debate. The proposed changes appear to tinker at the margins, such as prohibiting second- and third-order filibusters after initial cloture votes to proceed to the floor with the main legislation; prohibiting filibusters of proceeding to conference committees; requiring senators to actually hold the floor, like the filibusters of the “Mr. Smith Goes to Washington” days of old; and so forth. It is telling, though, that many advocates of filibuster reform have borrowed a phrase from the 1990s: “Mend it—don’t end it.” This phrase was first linked with affirmative action quotas in the 1990s, and its real meaning was to prevent any real change to the increasingly unpopular regime of racial preferences. In this case, the slogan means exactly the opposite. If progressive reformers had their way, they would end the filibuster, and are constrained from doing so only by political reality. (I exempt Brother Ornstein from this charge; he merely dislikes the untidiness and disrepute that the perception of a dysfunctional Congress conveys to the public.) This fact is never clearer than when reformers complain that the Senate filibuster makes the chamber “undemocratic.”

To which I say: precisely. Long may it continue to be so undemocratic.

Majorities are always frustrated when a determined minority uses and occasionally abuses the rules to thwart the majority.

Several observations should be brought to bear on how to think about the filibuster. First, keep in mind that the original cloture rules to end filibusters were instituted about 100 years ago, precisely to end the ability of a single senator to tie up the Senate forever in debate. Prior to these rules, Senate debate was completely unlimited, and a group of senators could filibuster forever, if they wanted.

But the core point in defense of the filibuster as we know it today is that, while not mentioned in the Constitution, it is wholly consistent with the framers’ intent that the Senate not be a purely democratic body. Even a casual reader of the Federalist Papers and other founding-era thought will know that the central idea of our republic’s design is to operate not by simple majority rule but by a certain kind of majority—a deliberative majority. While the whole House is elected directly every two years to represent transient and shifting public opinion on a nearly real-time basis, the Senate, with its rolling turnover and (previously) indirect method of selection, is intended to move slowly, to be, as the overused metaphor from the founding had it, the “cooling saucer of democracy.” In the case of many liberal items the filibuster held up in the last Congress, the filibuster can be said to have worked exactly according to the framers’ design: to ensure that a genuine consensus exists for major changes, and to prevent a transient majority from imposing its will on the public without its consent.

I can hear Brother Ornstein ask, “So what, exactly, is “deliberative” about blocking appointments and slowing even noncontroversial items through procedural obstacles?” Just this: In an age of intensely polarized politics, rooted in deep and possibly irresolvable differences of principle over the nature and reach of government, the filibuster, even in its extreme and abused forms, assures that a genuine consensus exists for Congress to move forward both in general and on particular pieces of legislation. Reserving the power to invoke a filibuster in successive steps of the process is also necessary to balance one of Senate Majority Leader Harry Reid’s favorite parliamentary maneuvers, a process known as “filling the tree,” whereby bills brought to the Senate floor cannot be amended.

Never mind the hypocrisy of folks who now lament the filibuster after having defended it from Republican threats to curtail its use against many of President George W. Bush’s judicial appointments a few years ago.

But is the filibuster dangerous to the republic’s necessary business? Here we must make an empirical inquiry, though final judgment will depend on subjective views about what constitutes the “vital” functions of our government. To people inside the Beltway, everything is vital. Citizens may have a more balanced view, which is why public opinion is the ultimate check on the filibuster.

Are filibusters blocking any of the truly essential business of the nation? Both houses of Congress failed to pass an actual budget for this fiscal year, despite a legal requirement to do so and Senate rules that reduce the filibuster’s influence on the budget process. Complaints about the filibuster slowing vital matters ring hollow before this kind of congressional irresponsibility. Are any executive departments or court houses failing to function because of a filibustered appointee? No. (You could double the number of federal judges, and everyone would still complain about clogged dockets. And most senior political appointees to the executive branch are captured by the careerists anyway; I doubt the careerists even notice the absence of the deputy assistant undersecretary for interagency affairs.) Are filibusters stopping timely defense appropriations for our troops in the field? No. Senators don’t dare do something that reckless.

Process reforms of this type are always a masquerade of the one-way ratchet to make it easier for government to acquire more power.

This raises the most important aspect of the issue—the ultimate restraining hand of the voters. It is telling that Senate Democrats chose not to filibuster either of George W. Bush’s Supreme Court nominees—John Roberts and Sam Alito—even though Democrats objected to their jurisprudence as much if not more so than the numerous lower court nominees they blocked through the filibuster. Needless to say, these Supreme Court appointments were much more significant than lower court nominees. So why didn’t Democrats use the filibuster against Roberts and Alito? The answer is clear: public opinion would have turned savagely against Democrats if they locked up the nation’s highest tribunal for purely ideological reasons. In fact, Senate Minority Leader Tom Daschle’s obstructionist use of the filibuster probably played a role in his defeat for re-election in 2004.

In several of his landmark decisions delineating the reach of the national government, Chief Justice John Marshall argued that the abuse of a power is not an argument against its existence. Moreover, Marshall argued that the remedy for the abuse of power is not in endless tinkering with our basic rules, but in the hands of the people through the ballot box. The Progressive Era Republican Senator Albert Beveridge invoked Marshall’s teaching in several Senate speeches in his career: “The limit is in our common sense and in our responsibility to our constituents. If we do exercise our power unwisely the remedy is in the hands of the American people at the ballot-box . . . Mr. President, if the possible abuse of a power is an argument against its existence, where are we?”

The irony here is that recourse to the ballot box is the same remedy Brother Ornstein and other opponents of term limits have (rightly in my view) advocated for that source of our democratic discontent. Why isn’t the remedy he and others suggest for entrenched incumbency just as good for the filibuster?

Steven F. Hayward is the F.K. Weyerhaeuser Fellow at the American Enterprise Institute.

FURTHER READING: Hayward dissipates more political smoke with “Dump the Bipartisan Mush: Here’s How You Do It for Real,” “The Irrelevance of Modern Political Science,” and “Two Cheers for the Clean Air Act.” He discusses liberal revisionism in “Reagan Reclaimed,” verbal vitriol in “Political Attacks, Circa 1800,” and “Warm and Fuzzy” environmental thinking.

Image by Rob Green/Bergman Group.

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