A Liberal Defense of the Filibuster

COMMENTARY Political Process

A Liberal Defense of the Filibuster

Feb 18th, 2021 2 min read
COMMENTARY BY
Thomas Jipping

Senior Legal Fellow, Center for Legal and Judicial Studies

Thomas is a senior legal fellow for the Edwin Meese III Center for Legal and Judicial Studies.
Senate Majority Leader Chuck Schumer (D-NY) arrives for a news conference at the U.S. Capitol on February 11, 2021 in Washington, DC. Drew Angerer / Staff / Getty Images

Key Takeaways

Because the Senate is designed for deliberation, ending debate requires a supermajority before a simple majority can pass a bill.

The right to extended debate means that, in the Senate at least, the majority cannot do whatever it wants, however it wants, whenever it wants.

The only way to do away with extended debate is a "complicated procedural maneuver" often referred to as the "nuclear option."

With Democrats at least nominally in control of Congress, there’s talk about what the powers-that-now-be want to do and what it will take to do it.

While the same bill must pass both the House and the Senate to become law, the two chambers handle legislation differently. Will the Left try to change the legislative process permanently just to notch a few temporary policy victories?

The founders believed that too much government power in too few hands would destroy the liberty that government exists to secure. That’s why they divided power into branches and created checks and balances between them. The legislative branch itself is divided between the House and the Senate, each with different modes of representation and terms of service. Common sense alone says that this system will, from time to time, frustrate political forces that want their way no matter what. In fact, our system of government is designed to prevent "no matter what" governing.

>>> Defending the Filibuster, the Last Safeguard of Minority Rights

In his 1810 State of the Union address, President James Madison argued that "a well-instructed people alone may be permanently a free people." To that end, it’s important that people understand how our system of government is designed and is supposed to operate, especially within the legislative process. Because the House is designed for legislative action, a simple majority can take each of the two steps in passing a bill: ending debate and passage. But because the Senate is designed for deliberation, ending debate requires a supermajority before a simple majority can pass a bill. A failed attempt to end debate is called a filibuster.

The right to extended debate means that, in the Senate at least, the majority cannot do whatever it wants, however it wants, whenever it wants. The majority cannot simply ignore the minority like it can in the House. Both parties have used this to promote their ideas, influence legislation, and prevent radical or highly divisive legislation from sailing through.

The other day, I stumbled across one of the best explanations I’ve seen of this feature of Senate legislative business. Published on May 2, 2005, this "crib sheet" on the filibuster made several important points. First, the founders "designed the Senate as a deliberative body to check the impulses of the House" and thus "created the Senate with longer terms and rules of unlimited debate." Second, "particularly when the same party controls the presidency and both houses of Congress, Senate debate is one of the critical checks to protect the rights of the minority and promote bipartisan compromise." Third, because Senate rules provide for extended debate, and rules changes require a two-thirds majority, the only way to do away with extended debate is a "complicated procedural maneuver" often referred to as the "nuclear option."

>>> Why Preserving the Legislative Filibuster Is Critical for Conservatives

While the Senate’s debate rule would say what it said before, a slim partisan majority of senators would vote that those words would mean what they never meant before. Pretty slick, right? The debate in 2005 concerned filibusters of judicial nominations, but this explanation argued that the "same arguments … can be used tomorrow to end filibusters on legislation." That’s what some are calling for today. The filibuster crib sheet concluded: "This partisan power grab would destroy Senate tradition and damage our system of checks and balanced."

Oh, I forgot to mention that this compelling defense of the filibuster was authored by Nan Aron, president of the left-wing Alliance for Justice, and released by Generation Progress, a left-wing policy organization housed within the Center for American Progress, another left-wing group. Hey, it’s important to give credit where credit is due.

This piece originally appeared in the Washington Examiner