With a new session of Congress set to begin in January, there are again calls to ditch the filibuster in the Senate. This is becoming a biannual tradition inspired by the dramatic increase in the use of the obstructive tactic in the last 30 years. So it’s time for another filibuster rant.
1. Should the filibuster be reformed?
It has been ruined through overuse. Like many other abused privileges it needs to be taken away. It has grown from a rarely-used technicality to an exception that swallows the rule (in this case, the majority rule). A method for protecting and respecting minority voice and rights has been finally reshaped forever as a tool for minority rule. Minority rule is the seed of oligarchy (look it up) which could replace our democracy or republic (whichever version of America you subscribe to).
The historical filibuster data shows Republicans are the innovator of the evil, Democrats just follow their pace. End it so neither can use it.
President Obama didn’t win 67% of the vote, so does that mean Mitt Romney should get a veto pen too?
If you don’t like what the Senate is doing, the constitution already gives you the power to stop them through these things called elections. You have to persuade enough people that you are right. If you can’t convince majority of people (50% + 1) that you are right, you do not deserve to have the power to pass laws that affect the right of all of the people (100%).
We don’t need the filibuster to provide checks and balances. The constitution explicitly provides this by setting up separate branches of government, and further within the legislative branch divides power again with a bicameral legislature. You don’t need the filibuster to protect the country against 51 Senators. Whatever the Senate passes has to get through the House too, then has to get past a president’s veto power. If a policy has enough support to get through all of that it is an abomination that it can be stopped by one anonymous Senator.
2. Is the filibuster constitutional?
No. The constitution does give the Senate the power to set its own internal operating rules, but people are missing the obvious point that those rules cannot then violate other parts of the constitution. The rule-making power is not unlimited. Think about it this way: If the Senate is free to make any rule, they could make up a rule that says “No Girls Allowed” and ban all female members? Do you really think they could do that? The Senate’s power to make its own rules must have limits.
I said before:
If a law has the support of a majority of the people’s representatives, unless it falls into one of the categories where the Constitution requires more, it should pass. A republic based on representation of the people relies on majoity rule. Think about it. We don’t hold elections this way. If a candidate gets 51% of the vote, he wins. Nobody would tell him, “Sorry, 49% voted for the other guy. You can’t go to Washington.”
Some idiot will come back and say that there’s no mention of “majority rule” in the constitution. Majority rule is such a basic asumption of representative bodies and principle of democratic republic that it didn’t need to be expressly stated in the constitution. Next, you’ll tell me that dead men can serve in Congress, because the constitution does not expressly state a living persons requirement in the qualifications clauses.
3. Will the Supreme Court strike down the filibuster?
The Court may see this as a duckable issue using a form of the political question doctrine to let the Senate handle its own process. This would likely be the basis of a partisan motivated decision to uphold it, essentially, by punting the issue.
When a Senate rule in its operation is so egregious that it strikes at the core of what it means to be a republic (or democracy, take your pick, again) then it is the Court’s duty to intervene. A Court ducking behind a political question doctrine would itself be complicit in the Senate’s folly.
4. Will the Senate reform the filibuster on its own?
There is some hope or suggestion that the Senate will come to an agreement itself to reform filibuster or its use. It probably won’t happen, and it’s largely an issue of leadership. Senate Majority Leader Harry Reid, like President Obama, knows what is the right thing to do, occasionally talks about it forcefully, but ultimately lacks the guts to do what is necessary.
With a bit of bluster this month Reid has finally offered his support behind a filibuster reform plan. This mediocre plan simply removes the ability to filibuster one step in the process and adds some transparency to the filibuster tactic by having the filibustering senators talk.
5. How do both sides benefit from the filibuster rule?
The obstructive minority helps all incumbents by keeping tough, yet popular issues off the table. Politicians are protected when they don’t have to make a call on the record. Look at 2007-2008 in the table above. The Republicans had George Bush in the White House and the minority in the Senate. President Bush could have vetoed everything the Democratic majority would have passed, but the GOP still went with the filibuster. The Democrats did the same in the Clinton years. Both sides have benefited from using the filibuster to duck accountability on the issues. It keeps your record clean: you do not have to vote against a bill, the president doesn’t have to veto, etc.
This last reason is why I won’t be surprised if it filibuster reform ultimately fails yet again.