Tuesday, September 26, 2017

The Flaw in the Filibuster

Our Founding Fathers created the United States Senate to protect the rights of the individual states as well as providing the protection of minority rights from what could be an emotional majority at times.

James Madison saw the Senate's role to be two-fold as he described it in his notes at the time of the Constitutional Convention.

"first to protect the people against their rulers [and] secondly to protect the people against the transient impressions into which they themselves might be led."

The Senate was clearly established in the Constitution to be a more deliberative body than the House of Representatives.

The Senate's members were originally elected by state legislatures. This was designed to make the Senate more attuned to state rights and to further remove Senators from the tides of the emotional majority.

That safeguard was removed with the ratification of the 17th Amendment which was ratified in 1913 and established that Senators were to elected by direct election of the voters.

What has really caused the United States Senate to be a deliberative body is not in the Constitution at all. It is the use of the filibuster.

There is nothing in the Constitution about a filibuster. There is nothing in the document that requires a super-majority to pass any legislation through the Senate. However, in the world we live in today that has become the reality.

There is little doubt that our Founders liked deliberation from the Senate but they had no interest in rule by the minority. James Madison wrote about their thinking in Federalist Papers No. 58.

"It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale."

The filibuster tactic has become increasingly controversial in recent years. The Democrats hated it when they had a simple majority in the Senate. Predictably, the Republicans hate it now that they are in the majority.

President Trump is certainly no fan of the filibuster rule.

The first filibuster did not occur until 1837 in the Senate. A 2/3 vote was required to invoke cloture (end debate and the filibuster) in 1917 and that was revised down in the Senate rules to 3/5 (60 votes) in 1970 after the filibuster was used extensively by Democrats to attempt to stop Civil Rights legislation in the 1960's.

However, that move to attempt to reduce the power of the filibuster was reversed when the Senate revised the rules again in 1975 and abolished the requirement that senators actually hold the floor by speaking. This had the effect of allowing the use of “virtual” filibusters.  Senators can now filibuster a bill without having to do the actual hard work of standing and speaking against the issue on the floor..

A filibuster thus has become not a method for deliberative debate but a pure tool of legislative obstruction.

Not surprisingly, the number of filings for and votes on invoking cloture exploded after 1975.  There were only a handful of cloture votes in the sixties. It is not unusual to now see well over a hundred in recent sessions of the Senate.

I am not opposed to the filibuster rule in general. I think it does serve a useful purpose in what is supposed to be a more deliberative body such as the Senate. This is particularly true since the enactment of the 17th Amendment.

However, the rules need to be reformed. I have believed this for a long time---through both Democrat and Republican majorities.

If a filibuster is used it needs to really be about deliberative debate. The idea behind a filibuster is for the minority to draw attention to "hasty or impartial measures". It is a device to slow things down so that the voters and the general public have more knowledge of what is going on. If that is the case, the filibuster cannot be virtual. It must involve Senators standing up and holding the floor like Mr. Smith did when he went to Washington in the famous Jimmy Stewart film.

Jimmy Stewart in Mr. Smith Goes To Washington

If you are going to physically hold the floor with a filibuster debate that also means that no other Senate business can proceed. If you want to block a vote on your issue you must be prepared to incur the wrath of everyone else when that filibuster also blocks consideration of all other Senate business.

I am all for full debate. However, that debate has to end at some point and a vote needs to be taken---up or down--- on a simple majority basis just as the Constitution provides.

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