#41 Musings Beyond the Bunker (Friday May 28)
Greetings,
THE FILIBUSTER STANDS IN THE WAY OF PROGRESS AND MAJORITY RULE
Today, I’m going to prove to be a poor host. I’m presenting Bob Badal’s excellent attempt to justify the filibuster and then point out what I perceive as flaws in that reasoning (or at least the fact that reasoning no longer is applicable)…
Here are Bob’s words followed by my own:
MINORITY RIGHTS
BB: The Founding Fathers had something specific in mind when they departed the Constitutional Convention in 1786. In order to diffuse power at the federal level and in order to make dramatic shifts in policy less likely, they would not only have a tripartite government, they would further divide the legislative branch itself into two pieces—one that would represent the interests of the people directly (the House) and one that would represent the interests of the States (the Senate). Accordingly, other provisions of the Constitution were dovetailed to this notion… These provisions, among others, were intended to keep the States invested in the new government and assure them that there would be no wild shifts in legislative policy.
GS: Times have changed. The Constitution was a move away from the Articles of Confederation and the founders knew they would have to settle for “half a loaf” or not retain the support of the states in obtaining ratification. There still was reluctance expressed by many states (mostly southern, wanting to preserve slavery) in surrendering a greater portion of their sovereignty to a federal government. The Civil War was the culmination of the nationalization of the many states. And whereas states had their distinctive features “way back when,” increasingly businesses and people relocate based upon economic, taxation, and quality of life considerations. North Carolina is not much different from New York anymore.
STATES RIGHTS
BB: As it developed over 200 years ago, the filibuster was a procedural device to further the goal of keeping the States committed to the federal constitution and the goal of avoiding radical shifts in policy. The filibuster was first used formally by the Whigs, although its origins are somewhat murky.
GS: Two hundred years ago, it took a week to get from Philadelphia to Boston. Things moved slower. Avoiding radical shifts in policy may have been a worthy endeavor; today, however, being nimble is more important (explaining China’s recent term dominance). Again, the major policy justification for the state balance in the Senate was not so much for states’ rights as for the preservation of the balance between slave states and free states. The filibuster and the high vote required for cloture ensured that the slave states could avoid debate whenever they chose (note, this also is the justification for the House’s long-standing gag rule).
AVOIDING RADICAL POLICY SHIFTS
BB: One may disagree with what the Founders had in mind—i.e. one could properly assert that in this day and age one does not need a Senate to protect the rights of States and one should welcome radical shifts in policy if 51% of the House and 51% of the Senate want such shifts. But that’s not the system we have.
GS: Several things here:
The system we have (that majority doesn’t rule) is the product of Congress’s rules and not the Constitution.
Let’s say you’re right that the states require protection from the big bad federal government. Today, the greatest danger is not that there will be radical shifts in policy (indeed, the most radical now occur via presidential orders under successive administrations, dealing Congress out of the legislative process). The greater danger today is the radical effect of inaction. Remember that inaction is in fact an action—the action to choose the status quo and to do nothing.
Any “radical shifts” will have to face the voters every two years.
Stability is at least partially ensured by the six-year terms of Senators.
The “minority” has more than its share of advantages. The Republican minority is disproportionally represented in the Senate by virtue of the over-representation of rural right-leaning less-populous states. This also plays out in over-represented rural states in the Electoral College. The Republicans will preserve this twisted result through suppression of voting rights and accessibility and denying statehood to DC and Puerto Rico.
CONSTITUTIONAL REQUIREMENTS
BB: To achieve that end [allowing for majority rule by a bare majority], one would have to do a structural reorganization of the Constitution in order to reorient its purposes. The problem, if there is one, is not the filibuster; it is a Constitutional design that presumes that the individual States are the fundamental building blocks of the federal government.
GS: Well perhaps, but remember, the filibuster is not a constitutional protection of the minority. The filibuster and closure votes to end it are the creation of the rules of the Senate. These rules are subject to change (and, indeed, change fairly frequently). Let Congress vote, even by a small majority. And if the people don’t like it, they get to vote the bums out in a couple of years.
Time for the twisted result that the filibuster requires a 60% vote on most legislation to go. Otherwise, we are unlikely to see anything happen. With political polarization and strong party control of members, no one will ever get to 60% on anything.
Glenn