When the Senate reconvenes at the beginning of the year, Democratic majority leader Harry Reid is promising to change the rules to make it more difficult to use the filibuster – a parliamentary tactic that lets a few senators keep the majority from passing bills and doing other business.
Reid and other Democrats say filibuster abuse has brought Senate business to a standstill. Republican minority leader Mitch McConnell and his allies say the filibuster ensures bills that do pass have broad support.
Who is right? Should the filibuster be fixed or fired? Joel Mathis and Ben Boychuk, the RedBlueAmerica columnists, debate the issue.
The Founding Fathers would have hated the filibuster.
Sure, they gave the Senate the permission to write its own rules, and yes, they created a checks-and-balances form of government to ensure government didn’t overstep its bounds. But the Founders created the Constitution because they wanted an energetic government and they didn’t want a few naysayers obstructing that energy.
Listen to Alexander Hamilton, writing in The Federalist Papers against the discarded notion that two-thirds of states be required to approve federal legislation – giving a one-third minority of states veto power over such bills. “Two thirds of the people of America could not long be persuaded . . . to submit their interests to the management and disposal of one third,” he wrote, adding: “We forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary.”
The situation Hamilton reviled isn’t so different from the modern Senate, where 60 out of 100 votes must be mustered to pass any legislation of consequence. Which means about two-thirds has been forced to submit to the management of one-third.
Elsewhere in the Federalist, James Madison wrote against another filibuster-like trick to block legislation: Congressmen simply didn’t show up for votes they didn’t like, preventing a quorum to pass legislation. Madison hated the idea of that technique: “It would be no longer the majority that would rule: the power would be transferred to the minority,” he wrote. But that is precisely what happens in the Senate.
The proposed reforms wouldn’t end the filibuster, but filibustering would be harder. Senators would actually have to show up, give speeches and make votes to block legislation. They’d have to do their job, in other words. That’s not unreasonable.
It wouldn’t be unreasonable, in fact, to ban filibusters outright but that won’t happen. Just remember: The Founders would have hated the filibuster. They were right.
Republicans are fighting vigorously to maintain the filibuster as a check on a liberal Senate majority. Maybe this is the wrong fight to pick.
A few years ago, Republicans argued that a minority of Democrats exploited the filibuster to block President George W. Bush’s judicial nominations. Some conservative legal scholars even made a compelling case that the Democrats’ judicial filibusters were flatly unconstitutional. After all, the Constitution gives the Senate the power of “advice and consent.” But in the past decade “advice and consent” has hardened into a posture of “obstruct and delay.”
The Republicans were correct when they threatened to use the “nuclear option” against the Democrats and change Senate rules that make the filibuster a cheap and easy tactic of obstruction. Today, the filibuster is a monster. It shouldn’t matter who’s in charge.
Not that it hasn’t been pleasing to watch McConnell expose Reid as a rank hypocrite over the past week. McConnell, who is no slouch when it comes to exploiting Senate rules, has been reading Reid’s formerly pious defenses of the filibuster into the record.
The Senate is supposed to be a more collegial body than the House of Representatives, where simple majority rule prevails. And goodness knows, rules are important. But rules are also made to be broken, especially when the rules no longer make sense.
Conservatives may balk at ending the filibuster. Think of the insane bills Reid and the Democrats could usher along. Imagine the terrible judges they could confirm to lifetime appointments on the federal appellate courts.
That’s true. But Democrats would no longer be able to blame Republicans for obstructing their agenda. Instead, they would be compelled to defend their liberal voting records.
Reid apparently believes, against all reason, experience and good sense, that Republicans will never again have a majority in the Senate. Grant the Democrats their wish, end the filibuster and let them take the consequences.
Ben Boychuk (firstname.lastname@example.org) is associate editor of City Journal. Joel Mathis (email@example.com) is a writer in Philadelphia. Join the conversation at www.facebook.com/benandjoel.