Filibuster

Democracy and the Filibuster

Next thing you know we could be deciding all sorts of things by majority vote.

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The Senate vote Thursday to curb the use of filibuster against judicial nominees, over the objections of the Republican minority, can only be seen as a terrifying development. Why, next thing you know we could be deciding all sorts of things by majority vote.

The average American may think deciding things by majority vote is the basic idea of our democracy. But say something like that, and you risk getting a lecture on how America is not a democracy but a constitutional republic, and that the framers took care not to give too much power to the people, and that they invented all sorts of devices to keep them from running out of control.

Defenders portray the filibuster as an essential check on the passions of the mob. Columnist George Will defended it in 2010 by quoting Thomas Jefferson's belief that "great innovations should not be forced on slender majorities," and expressing doubt that "a filibuster ever prevented eventual enactment of anything significant that an American majority has desired, strongly and protractedly."

But Will, like today's Senate Republicans, has not always taken such a positive view. In 2003, when Democrats used it to keep the Republican Senate from confirming the Republican president's judicial nominees, he warned of dire consequences if "Senate rules, exploited by an anti-constitutional minority, are allowed to trump the Constitution's text and two centuries of practice."

He was alluding to something important there: The filibuster, which allows 41 senators to prevent a vote, is not part of the ingenious design of the framers. It is part of the Senate rules, which did not allow it until 1806.

As political scientist Sarah Binder of the liberal Brookings Institution has noted, that was not the product of a considered judgment but "the unintended consequence of an early change to Senate rules." Even so, "it took several decades until the minority exploited the lax limits on debate, leading to the first real-live filibuster in 1837."

Those who defend the filibuster as an integral component of our system are reminiscent of the believer who distrusted modern translations of the Bible: "If the King James Version was good enough for Jesus, it's good enough for me."

There is something to be said for promoting deliberation by impeding action. But that's what the Constitution did, requiring legislation to gain the approval of the House, the Senate and the president. It also required judges to win not only the president's nomination but the approval of a majority of senators.

Under the established filibuster rule, though, a majority of senators often did not have the power to do what the Constitution says—namely, to provide "advice and consent" on presidential nominees. A minority of members could block them from even taking a vote.

This custom was not part of the framers' handiwork; it also was not in keeping with the practice of the Senate over most of its history. From 1951 to 1961, there were only two votes to end a filibuster. From 1961 to 1971, there were 26. From 2003 to today, there were 423. What was once a last resort in rare emergencies has become a first resort in routine business.

Republicans and Democrats can debate which party has most abused the option, and which has been more hypocritical in changing its mind about the filibuster once it went from the majority to the minority or the reverse. Neither side has acted with selfless regard for the will of the people or the proper functioning of government.

The change adopted by the Senate has been dubbed the "nuclear option," as though it were unimaginably destructive. But all it destroys is the capacity of the minority party to frustrate the operation of the legislative branch. And it applies only to executive and non-Supreme Court judicial nominations. The old rules still apply to other matters.

Conservatives sometimes act as though democratic processes are something to dread. Uncontrolled, they can be scary. But under our Constitution, they are carefully regulated to prevent rash action.

The framers, however, did not intend to let the minority prevail as a general rule. They did require a super-majority vote to approve treaties, override presidential vetoes and pass constitutional amendments. Had they wanted to require 60 votes to confirm judges, they knew how to do it.

In most things, though, they chose to let the majority rule. It's not a perfect system, but there are worse ones.

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  1. How am I supposed to post first if I don’t know which thread is going to be nuked?

  2. Yeah OK wow that makes a lot of sense dudde.

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  3. I really do like the sound of that. Wow.

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  4. The filibuster ought to be kept, but it ought to be a real, no-foolin’, Jefferson Smith standing at his desk and reading astroturfed telegrams and shutting down the rest of the chamber’s business filibuster.

    As things stood last week, it was like that Star Trek episode where Kirk and crew put the Enterprise in orbit around a planet that’s having a “mathematical” war: rather than actually using weapons to kill each other, the two planets use algorithms to determine how many people and who get killed.

    1. That was copied from “The Twilight Zone ” from around 1960S ish more or less plus or minus.

    2. In fact the entire “Star Trek” idea was plagiarized for real life.

      James Kirk = James Cook

      Starship Enterprise= HMS Endeauvor

      “….to boldly go where no man has gone before.”
      Spoken introduction to Star Trek Series

      “….farther than any other man has been before me…as far as I think it possible for a man to go”
      The Journal of Capt. Cook – Second Voyage

      Both men had the first name James and similar surnames and were brought up on farms (Cook in Yorkshire, Kirk in Iowa). They both became captains of ships with similar names (Endeavour and Enterprise). Cook’s journal said he had travelled “further than any man had ever been before” while Kirk said his mission was “to boldly go where no man has gone before”.
      Cook and Kirk both set out to describe, rather than conquer or convert the lands they discovered. Cook set out in jolly boats with his naturalist, a surgeon and musket-toting red-jacketed marines. Kirk beamed down to planets with his science officer Mr Spock, his medical officer Dr “Bones” McCoy and various expendable characters in red jerseys.

      Star Trek was not a creation by Roddenberry, it was an “adaptation”, at best.

  5. If the repubs take the senate in 2014, and even better if they get the presidency in 2016, it will be fun to compare what everyone is saying about the filibuster rules now and what song they will be singing then.

    Yeah Steve, I am keeping a link to this article.

    1. Hell, just look at what everyone was saying the last time the republicans held the Senate and threatened to do the same thing. Harry Reid’s comments especially, along with the NY Times and the rest of the democrats.

      1. And Joey Biden.

        1. Biden almost doesn’t count because he invariably says something stupid for every occasion anyway.

      2. Obama was against the nuclear option before he was for it.

        “I urge my Republican colleagues not to go through with changing these rules,” he said on the Senate floor in 2005. “In the long run it is not a good result for either party. One day Democrats will be in the majority again and this rule change will be no fairer to a Republican minority than it is to a Democratic minority.”
        link

  6. Chapman writes for the Chicago Tribune? That’s not something to brag about.

    I hate mornings.

  7. 1836:2013::apples:oranges.
    The modern Congress (be it controlled by Ds or Rs) is not constrained by the constitution of 1836 and its limits on federal power (see: ACA). As long as the Senate continues to claim the power to do pretty much whatever it wants to do, I’m fine with the use of an extra-constitutional check on that power. Two can play that game.

  8. Lat time I checked, we live in a Republic not a Democracy. The average American is as dumb as Chapman.

    1. I think direct election of Senators put a knife in that. Pitty we can’t get rid of filibuster and election of Senators by popular vote at the same time.

      1. Why do you trust your state legislator more than you fellow coequal citizens?

        1. To have a republic, we must have some republican states. Those would be the states. The senate represents (or use to before the seventeenth amendment) the states while the house represents the people (or, at least the relatively small districts that they live in.

          Popular election of senators and now a more majority oriented operation of the senate (at least as regards appointments) makes the senate increasingly just another house. We eventually become a democracy instead of a republic. And you know what happens to those, don’t you?

          1. The Senate was conceived of as body of literal Top Men who were supposed to be more deliberative than the common rabble in the House. State legislatures appointing them led to predictable corruption, and the problem was bad enough to motivate an actual constitutional amendment. All of that aside, I do not understand why individualists skew against democracy. You think Top Men will be more likely to advance your unpopular beliefs? Kinda weird if you ask me.

  9. What a shock.

  10. Those who defend the filibuster as an integral component of our system are reminiscent of the believer who distrusted modern translations of the Bible: “If the King James Version was good enough for Jesus, it’s good enough for me.”

    Eat a dick, Chapman.

    Seriously.

    1. Mmmm… With custardy sauce…

      The Heinz canned version isn’t too bad. I’ll have to pick up one today along with some treacle pudding.

  11. The framers, however, did not intend to let the minority prevail as a general rule.

    They didn’t intend to create a government that asserts the right to rob, indefinitely imprison, or kill its citizen’s at the whim of its rulers either. Anything that restrains that government is good.

    1. The framers didn’t write in the option of the minority to filibuster in an effort to prevent the majority from running roughshod over them. That was added in order to put in place a pressure valve before the minority exercised the option the framers DID mention, i.e. the 2nd amendment. Keep in mind, Chapman, that the framers had just fought an armed rebellion as a minority against an oppressive majority.

      Also, Steve, if we’re all of a sudden so concerned about the literal content of the Constitution I’d like to revisit that whole, “…shall not be infringed” bit.

      1. The framers didn’t write in the option of the minority to filibuster in an effort to prevent the majority from running roughshod over them.

        The Constitution doesn’t have anything at all in it about filibustering or cloture. Those were added as Senate rules that can be changed at the whim of the majority.

        The Bill of Rights and the limited enumerated powers were what were actually written to prevent majority tyranny.

  12. Yay, tyranny of the majority. Yay.

  13. The framers, however, did not intend to let the minority prevail as a general rule.

    I never waste my time reading the idiot’s nonsense. Is that really in there?

    “Oh, Nooooo! The tyranny of the minority! Those two libertarians over there in the corner are preventing us from turning the country into Paradise! If only there were some way to steamroller them into conformity with our enlightened beliefs.”

  14. So…majority rule now prevails in the Senate, eh? Is chapman familiar with how every state has an equal vote in the senate regardless of population?

    1. Which is why the switch from the Senators being appointed by the individual States, the be their representatives, to popular election was the first screw up, and departure from the founder’s model. There was and still is a directly elected group of representative for the people – it’s called the House. The whole point of the founder’s model was to create a government to do ‘federal’ things, such as defense, customs (the primary money raising scheme), and to basically only play referee, while seeking to severely hamstring its power and particularly, its ability to accumulate more of it – they had just thrown off the yoke of a tyrannical regime, after all. Although the events that triggered their revolt compared to the daily outrages the current American public endures kinda makes them come off as effite whiners, or demonstrates what a dullard hurd the people have become.

      1. Exactly. Direct popular election distorts the entire reason the Senate was created in the first place.

  15. Conservatives sometimes act as though democratic processes are something to dread. Uncontrolled, they can be scary. But under our Constitution, they are carefully regulated to prevent rash action.

    This would be a very prescient statement if it were not for the fact that Congress routinely violates the Constitution, occasionally even copping to it as Rep. James Clyburn did on Judge Napolitano’s late Fox Business program when he said, “there is no [Constitutional] authority for most of what we do down here.” Removing the filibuster specifically for the purposes of pushing through judicial nominees, who will later be ruling on the Constitutionality of legislation, seems especially hazardous to liberty.

    I also do not see the minority as prevailing when a filibuster is successful. It merely lets the status quo prevail until such time a large enough majority can be mustered to counter it.

  16. Me. Chapman has overlooked a serious point. The framers also never intended for the direct election of senators. I believe the ACA would have never passed had the senate been appointed by the states as originally designed. If that system was still in effect, than I would likely agree with his sentiments here.

    1. The Framers also intended for the central government to be a tiny, almost irrelevant body strictly constrained by such things as the Bill of Rights which gives a minority of one — any single unelected individual — a veto of most every power currently claimed by the feds.

      “Your majority wants “sensible gun control”? Fuck you, this individual invokes the Second Amendment, and the majority can suck eggs.”

    2. Point, Leary!

  17. Well we can vote on every law all we want but we’re all ruled by the 12 philosopher kings anyways.

    1. Do you think they would let us string up everyone in DC? That’s what I want to vote on.

    2. Where did I get 12 from:)

  18. Newt Gingrich has correctly pointed out that the death of the filibuster will enable Republicans to repeal ObamaCare, should they ever regain control of the Senate the the White House.

    No more filibuster means they don’t need a 60 vote majority to get a repeal past the Senate.

    1. It means one party in control of House, Senate, and Presidency can do whatever they damn please.

      You think elections are dirty now…

    2. Notice, though, that the filibuster wasn’t a serious impediment to Obamacare.

      …or TARP, or the Patriot Act, or the AUMF, or Dodd-Frank, or just about every other rotten piece of legislation that’s come down the pike over the last 12 years.

      I don’t understand why having less resistance to bad legislation is a good thing from a libertarian perspective–seeing how the government weighing in on more things is such a bad idea from a libertarian perspective.

      Yeah, it may be easier to repeal bad legislation now, but how often are we in mortal danger of the government trying to repeal bad legislation? The inertia just isn’t moving in the direction of less government, and it hasn’t been for more than a decade of the last out of the last 80 years.

      1. Game, Shultz! (tennis clap)

    3. Because, should the Republicans win the senate and white house, they otherwise would have definitely allowed Democrats to filibuster everything.

      1. They didn’t use the nuclear option under Bush. Probably out of fear of setting a precedent.

        1. Because they didn’t have the votes and because Democrats caved on their radical judicial appointments like Janice Rogers Brown. They don’t even object to Obama’s nominees, they just don’t want him to put them on the bench.

  19. The filibuster became, under McConnell, another created power of veto. The President has veto power, and even both houses can veto the presidential veto with 2/3 vote, but under McConnell we developed minority veto power. One third of all cloture motion in the history of the Senate came under one leader…McConnell.

    Filibuster worked fine when it was a check on majority abuses, but became absurd when it was used simply as a veto. Case in point was the Consumer Protection Bureau. Hated by Republicans, but passed legislatively, they found they could in effect “veto” the law if they could always prevent the nomination of the person to head it up.

    1. And this is bad how?

      1. Why, simply because the veto is a power specifically enumerated in the Constitution to the Executive Branch. And to overcome it requires a difficult to achieve 2/3 in the legislature. To allow a minority party similar power not specifically enumerated in the Constitution would be…well, unconstitutional. Particularly due to the fact that the filibuster itself is not mentioned in the Constitution.

        1. So you are fine with 50 + 1 % steamrolling the 50 – 1 % with whatever they want? that can be a matter of a single person deciding one way or another. I am for making it as hard as possible to keep passing new legislation, etc. because when that happens someone’s rights somewhere are ALWAYS affected.

          1. I for one prefer the Constitution over anarchy. Like I said above, when the filibuster was used simply as a means to check majority abuses, it was useful. For it to prevent majority rule in all, or almost all, instances is bordering on anarchy. But that is just my opinion.

          2. Making it equally difficult to repeal all the legislation you don’t like.

            Part of growing up is realizing you don’t get your way all the time. That is not tyranny, it’s the reality of living among other people.

        2. It strikes me that you’re proposing an argument hedged on rhetorical convenience.

          As in, Let’s find something the Constitution grants to the executive branch, assert that this is that, and voila! This is suddenly a power of the executive!

          Since I wouldn’t consider this a veto–it doesn’t reject legislation, but rather declines to pass it–your entire argument sort of evaporates.

          1. I don’t have to make an effort to find it in the Constitution…its there for all to see.

            And as I highlighted in the example of Cordray, a constitutionally passed piece of legislation can in effect be vetoed by a minority in the Senate simply by filibustering the person charged to lead it. It has that effect.

            Additionally, it has the effect of simply vetoing any executive’s attempt to fill judicial positions over anything other than qualifications. Case in point, Taranto, who was delayed for almost 2 years, and then passed unanimously when finally given an up or down vote…clearly qualifications were never the issue.

    2. The filibuster is what it was for decades: a way for Senators to halt the progress of a bill. McConnell didn’t invent that.

      In the end, the filibuster is no more a veto than is a majority vote requirement. Both are simply measurements of the level of consensus.

      1. No, what McConnell invented, or at least expanded, was taking the filibuster to the level of the absurd, and all the numbers bear that out. If you own one third of all the filibusters since the history of the Republic, and in just a few short years, you have at a minimum given a new definition to the term filibuster.

        The filibuster is not a measurement of consensus…majority rule is. A filibuster is simply a measurement of the minority, not the consensus.

  20. How about 60% to pass new legislation in the House and Senate, and 50%+1 to repeal.

    1. More like 90% to pass new legislation, and 10% to repeal.

      I want a really, really, ridiculously powerless federal government.

      /Zoolander

  21. The old rules still apply to other matters.

    The whole point of this affair is, the rules can be changed at any moment by majority vote. So that statement is pretty meaningless.

  22. “And it applies only to executive and non-Supreme Court judicial nominations. The old rules still apply to other matters.”

    And yet the loudest screams of obstructionism come during budget battles.

    I wonder how long the old rules will still apply to other matters.

  23. “Conservatives sometimes act as though democratic processes are something to dread. Uncontrolled, they can be scary. But under our Constitution, they are carefully regulated to prevent rash action.”

    Chapman, have you been asleep for the past 12 years?

    Are you making fun of us?

    Is this supposed to be sarcasm?

  24. We really don’t have two political parties in the United States of America. It’s really one party that pretends it is two. Might as well call it the Demopublican Party and have a Unicameral Legislature. Again, in reality, we have one party with right wing (conservative) and a left wing (liberal) branches, which are controlled and manipulated by the very very wealthy and the big corporations who also control the media. It’s not a dictatorship as such, but in some ways it is.

    See any other parties at the Presidential debates? Did I miss something? Were any other Presidential candidates allowed to “share the floor” with Romney and Obama during the last elections? In the end we would probably be better off if we had a Unicameral Legislature and umpteen political parties raising hell in it. For sure, the Presidents of the United States should serve only six years and should not be affiliated with any political party. They should be elected directly by the people and should run on the issues as they see them.

    1. “which are controlled and manipulated by the very very wealthy and the big corporations who also control the media.”

      If the wealthy control the government, then why do they pay such a disproportionate share of the taxes?

      http://www.ntu.org/tax-basics/…..taxes.html

      Take your class and envy and shove it. …or, better yet, why don’t you start a business?

      1. “If the wealthy control the government, then why do they pay such a disproportionate share of the taxes?”

        If the wealthy like government and benefit from it, why shouldn’t they want to pay for it, even disproportionately?

        I suppose the wealthy disproportionately contribute to political campaigns for much the same reasons.

        1. “If the wealthy like government and benefit from it, why shouldn’t they want to pay for it, even disproportionately?”

          None of the wealthy people I work with want to pay a penny more in taxes than necessary.

          “I suppose the wealthy disproportionately contribute to political campaigns for much the same reasons.”

          I suspect that’s mostly like protection money that they pay because they’re afraid of being forced to pay more in taxes.

          1. “None of the wealthy people I work with want to pay a penny more in taxes than necessary.”

            If you ask your wealthy co-workers about their campaign contributions, I sure they’d say the same thing. They don’t want to contribute a penny more than necessary. You might ask some of your unwealthy co-workers, I’m sure they’d say much the same.

            Besides, income taxes are paid by people who work for a living, whether it’s doctors, lawyers, or rockstars. The truly wealthy have other ways to make money than to sully their hands with work.

      2. Sorry Ken, but it’s not taxes the very wealthy pay, but campaign contributions for tax breaks and other benefits they might get should their man win. Anyway, if you don’t like my common you need to dial 1 800 EAT POOP and one of my operators will instruct you in detail as to what part of your anatomy you can shove your comments. And that would be appropriate if one considers that you rebuttal (no pun) to my comment was kind of a bowel movement in print. And, Ken I already have a business, so you probably need to double shove it. Nice posting with you ace.

  25. Wow,

    Now that I have been reading Steve Chapman for a while, I am unsure exactly why he writes here.

    Libertarians ALWAYS fear majority rule as it is so often the majority using the power of the state to tromp on the rights of the minority.

    If you are in favor or speeding up government, allowing it to move faster, or allowing simple majorities to get whatever they want more easily, you are more likely a progressive than you are a libertarian.

  26. This article falls into the old trap of assuming the Framers unquestionably got it right.

    If we avoid that assumption there’s just not much left standing of this article.

  27. Thank you. Fuck.

  28. I think it’s very telling that Harry Reid on the Diane Rehm show today said that the filibuster had to go so the President could complete his team of DC Circuit judges.

    1. And we can’t have a president appointing the judges he wants. That would be, like, perfectly normal order in our system!

      1. Tony, this is not so much about appointing DC circuit judges as it is about priming the reservoir that feeds the supreme court. What ever you think about strategies, this is important territory and you should expect a fight. To say it is merely about hiring judges to fill slots is a bit, shall we say, naive.

        But you knew this already.

  29. Chapman was for the filibuster before he was against it.

    “Critics of the filibuster, however, say there are limits to Congress’ authority over its own deliberations. In their view, rules may not impose a “supermajority” requirement that the Constitution doesn’t provide (as it does for treaties and constitutional amendments, which have to pass by a two-thirds vote).

    Nice theory, but where did they find it? Not in the Constitution. The “advice and consent” clause doesn’t even say that a majority of senators is needed to confirm a nominee. The definition of “consent” is left to the Senate.”

    http://articles.baltimoresun.c…..l-nominees

    “But none of those is as important as the oldest law of politics: Where you stand depends on where you sit.”

    Indeed, Mr. Chapman, indeed.

  30. Chapman,
    Either I’m reading you wrong, or I’m very disappointed with Reason for facilitating the posting of your article.
    There’s little point in discussing the founder’s intentions when we haven’t been operating the system as they designed since the mid 19th century. The direct election of senators is the obvious change that forced the senate to embrace the filibuster less they become a smaller, proofreading version of the House. Quite obviously, the Founder’s intention was for the separate States to provide advice and consent on nominations, approve treaties, and the like. The Senate was simply the most palatable proxy they could design. The filibuster kept that motive alive despite progressive’s worst intentions. Of course, in a few short years the filibuster will be completely dead, and you and your simple majorities will be free to finish off those pesky few who still dare to question the motives of the mob.

  31. Chapman,
    Either I’m reading you wrong, or I’m very disappointed with Reason for facilitating the posting of your article.
    There’s little point in discussing the founder’s intentions when we haven’t been operating the system as they designed since the mid 19th century. The direct election of senators is the obvious change that forced the senate to embrace the filibuster less they become a smaller, proofreading version of the House. Quite obviously, the Founder’s intention was for the separate States to provide advice and consent on nominations, approve treaties, and the like. The Senate was simply the most palatable proxy they could design. The filibuster kept that motive alive despite progressive’s worst intentions. Of course, in a few short years the filibuster will be completely dead, and you and your simple majorities will be free to finish off those pesky few who still dare to question the motives of the mob.

  32. Instead of repealing the 17th, abolish the senate and directly require a vote from the majority of state legislatures. This wasn’t viable back before electronic communications, but today it is the simplest way to achieve what the senate was designed to do (represent the states at the Federal Level).

    1. What interests do “states” have?

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