Are Senate filibusters unconstitutional?
By Joel Mathis and Ben Boychuck
Common Cause, a liberal advocacy group, announced it was bringing a lawsuit challenging Senate filibusters. Filibusters allow individual senators to delay legislation until it receives the backing of 60 senators ― a "supermajority" of the chamber's 100 members. The result: Bills can't pass without permission of the minority party.
"That's unacceptable," said Common Cause's Bob Edgar. "It's an affront to our democracy and not the way the Senate was supposed to work. And it has real consequences for real people."
Is the filibuster unconstitutional? Or is it a necessary check on government excess? Ben Boychuk and Joel Mathis, the RedBlueAmerica columnists, debate the issue.
Joel Mathis: The filibuster stinks. And the Founders would hate it.
Alexander Hamilton and James Madison never explicitly mentioned the filibuster when they wrote The Federalist Papers urging that the Constitution be adopted. But both wrote against allowing legislative minorities to veto the will of the majority. Doing so would probably destabilize the American government, Hamilton warned in Federalist 22: "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, later 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."
And in Federalist 58, Madison wrote against a proposal that would allow congressmen to block legislation simply by not showing up to sessions of the House of Representatives. "It would be no longer the majority that would rule: the power would be transferred to the minority," he wrote. It was clear he regarded that as a bad thing.
James Stewart glamorized the filibuster in "Mr. Smith Goes to Washington," but the tool has a mostly sordid history: For most of the 20th century, it prevented the passage of civil-rights legislation; more recently, it has been used so often that it prevents most attempts at governance. As The Washington Post noted, there were 16 filibusters between 1840 and 1900; there were 130 between 2009 and 2010.
The filibuster is making self-government impossible. The Constitution wasn't created just to limit government, after all, but to empower government to actually take action when needed. The filibuster is at odds with that vision.
Common Cause's lawsuit will probably fail. The Senate is clearly allowed to make its own rules. But the rules need to change, because they're creating a crisis of governance.
Ben Boychuck: It seems like a lifetime ago, but in the middle of part of the last decade, liberals made a passionate case for the maintaining the filibuster as a bulwark against conservative extremism ― a term applied to many of George W. Bush's judicial nominees.
Conservatives, in turn, made a passionate case that filibusters ― at least in the case of judicial nominations ― are flatly unconstitutional.
Today, the arguments are essentially the same. Only the positions have changed.
But who can forget the high drama of the 108th and 109th Congresses? Bush's judges languished in senatorial purgatory. Republican senators threatened to exercise the "nuclear option," which in reality was nothing more than a rule change forcing an end to unlimited debate on judicial nominations.
After the 2004 election, Republicans had enough seats to drop the Big One. But a bipartisan group of senators ― the so-called "Gang of 14" ― averted legislative Armageddon by forging a compromise in which seven Democrats would no longer vote with their party to filibuster judicial nominees "except in extraordinary circumstances."
As with any compromise, just about everyone had something to complain about. But the great takeaway was how relatively inconsequential the drama was ― and how inconsequential the Common Cause lawsuit will be.
We can agree or disagree about the utility of a supermajority requirement to close debate on legislation. But the constitutionality of the filibuster should be beyond dispute.
The Constitution includes several provisions requiring supermajority approval: impeachment, expelling members of Congress, overriding presidential vetoes, ratifying treaties and, of course, constitutional amendments.
The Constitution also clearly states that the Senate has the power to "determine the rules of its proceedings." No court in the land would presume to say otherwise, Bob Edgar's high dudgeon notwithstanding.
Today, the filibuster is a barrier to "progress." Next year, odds are the filibuster will be a bulwark for liberty again.
Ben Boychuk (firstname.lastname@example.org) is associate editor of City Journal. Joel Mathis (email@example.com) is a writer in Philadelphia.