In Killing off the filibuster would end the Senate’s undemocratic pretensions, Marketwatch columnist Daniel Wirls complained that the filibuster rule “allows a 41-vote minority in the Senate to block legislation.” Wirls opens by announcing his partisan motives:
Sen. Elizabeth Warren is the latest Democrat to argue an arcane Senate rule governing debate stands in the way of passing a progressive agenda, such as meaningful gun control.
It’s also blatantly hypocritical. The party in control of the Senate wants to eliminate the filibuster? That’s nothing new. When the Democrats are in the minority, they love the filibuster. Wirls goes on:
The procedure, known as the filibuster, allows a 41-vote minority in the Senate to block legislation. Its power has been steadily eroding, however, as both Democratic and Republican lawmakers create procedures to get around the roadblock to pass everything from the Affordable Care Act to President Donald Trump’s Supreme Court nominees.
Should the Senate move even farther toward being a legislative body characterized by majority rule rather than minority obstruction?
Wirls provides a little history, including this:
As political scientists and historians have noted over and over again, supermajority cloture is not part of — and cannot be derived from — the Constitution or any original understanding of the Senate. Elements such as equal representation by the states, six-year terms and a higher age requirement are what distinguish the Senate’s style of deliberation and decision-making from the House.
In fact, although it may seem like the 60-vote filibuster has been with us forever, it’s actually only been around since 1917.
But maybe the timing of the institution of the filibuster rule is significant. I posted these comments (no longer available online):
Undemocratic is the whole point.
America is fundamentally about securing individual rights, not democracy. Democracy is secondary to freedom in America, because freedom is not the right to vote. Freedom is the right to live by one's own judgment regardless of the outcome of any election. Consequently, the American government is about checks and balances--balances of power to check the rise of any form of tyranny, including democratic tyranny. It's interesting that the filibuster rule was established shortly after the 17th Amendment was ratified (1913). That Amendment established the popular vote election of Senators. That replaced state legislatures' authority to select their respective senators, thus eliminating one of the checks that state governments have on federal power. Perhaps the Senate sought to restore some of that checking power of the states. Maybe "supermajority cloture is not part of — and cannot be derived from — the Constitution or any original understanding of the Senate." But the filibuster rule is certainly consistent with the original understanding that our government must be regulated by checks and balances.
Another advantage of the filibuster is that it prevents legal whiplash—the constant change in laws based on which party controls the Senate. Legal consistency is important to people trying to plan their lives long term, especially in the economic realm. Simple majority rule would make it much easier to pass laws, which means much easier to repeal or alter laws. The more laws are altered or repealed or reimposed, the harder it is for people to plan. Requiring a supermajority moderates both the pace of change and the laws themselves. That’s not a bad thing. America is a Constitutional Republic with a democratic process, not a strict democracy.
Related Reading:
Some Thoughts on the Filibuster
1 comment:
All true, Mike. But there's another consideration--consistency in law. Without the filibuster, it would be easier to repeal or alter laws. This would whipsaw the public, especially the business sector, making longterm planning harder or impossible. A bad law is sufferable (up to a point). But the constant changing of the law everytime Congress changes hands could arguably be worse. Lawmaking would become the Congressional equivalent of Presidential executive orders.
Granted, we're in a bad state, individual rights-wise. As you say, at this point we can only limit the damage.
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