January 5, 2011 | Commentary on Political Thought
Eliminate the filibuster? Few democratic traditions are more iconic than the right of an individual senator to challenge the majority and force debate on important legislation. Think Jimmy Stewart in "Mr. Smith Goes to Washington."
Yet, over the last six years, leaders from both major parties have launched a serious campaign to "reform" the filibuster into irrelevance. The goal, they say, is to help the Senate dispatch its business more quickly. Yet any rule that makes it easier for Senate leaders to end debate and block the amendment process will lead to less transparency and less informed, refined decision-making. Haste, you'll recall, makes waste.
Traditionally, senators enjoy the right to unlimited debate on legislation or a nomination unless an overwhelming majority votes to end debate. Senate Rule 22 enshrines the right of ordinary senators to filibuster and guarantees them the opportunity to offer amendments during floor debates.
Some senators — including Democrats Jeff Merkley of Oregon, Tom Harkin of Iowa, and Tom Udall of New Mexico — want to use a procedural trick to change Rule 22. The trick is to claim that 1) the Senate's current rules are unconstitutional, and 2) the Senate can changes whatever rules it wants by simple majority vote.
The claim ignores the fact that the Senate is 1) a continuing body, and 2) operating under the explicit authority in Article 1, Sec. 5 of the Constitution. But it appeals to those who want to give Senate Majority Leader Harry Reid unprecedented power to advance his agenda at the expense of the rights of the minority party.
Not just individual senators stand to lose if this effort succeeds. Chipping away at the filibuster rule also further excluded the American people from the legislative process. When bills and nominations can be rammed quickly through the Senate, ordinary citizens have less time to read and understand the proposals, and less time to make their views known to their senators. Put simply, the filibuster helps buy us time to understand legislation and have our say.
This tradition assures every senator from every state the chance to participate in every debate. Jettisoning it would give the majority party unfettered power to pass legislation and confirm nominees with little to no debate. Without the filibuster, the Senate ceases to be a deliberative body.
The Senate, we should remember, was created to be an institution far different from the House of Representatives. The House was to be the voice of the people, with representatives elected every two years, while the Senate would represent the interests of the states, with senators elected every six years.
According to the Senate's official history, Thomas Jefferson and James Madison saw the upper chamber as a "great 'anchor' of the government" that would calm the passions of the House. "George Washington is said to have told Jefferson that the framers had created the Senate to 'cool' House legislation just as a saucer was used to cool hot tea."
In his 1833 treatise on the Constitution, Supreme Court Justice Joseph Story argued that the Senate's distinctive nature served an important purpose:
"No system could be more admirably contrived to ensure due deliberation and inquiry, and just results in all matters of legislation. No law or resolution can be passed without the concurrence, first of a majority of the people, and then of a majority of the states. The interest, and passions, and prejudices of a district are thus checked by the influence of a whole state; the like interests, and passions, and prejudices, or of a majority of the states, are met and controlled by the voice of the people of the nation."
Story did not think that the slow progress of legislation in the Senate was a bad outcome. He argued that "a good law had better occasionally fail, rather than bad laws be multiplied with a heedless and mischievous frequency. Even reforms, to be safe, must, in general, be slow."
Fast forward to today. According to Mr. Udall, "These filibusters have delayed things. They have obstructed the ability of the Senate to do its job."
But such delay is the point of the filibuster. And they've obstructed nothing; the Senate's job is to debate and deliberate. That can't happen if the majority can simply steamroll the opposition. We must preserve the filibuster.
Brian Darling is director of government relations at the Heritage Foundation (heritage.org).
First appeared in The Washington Times