The Misguided Anti-Filibuster Crusade of Progressives

When it comes to ending the filibuster, Ezra Klein over at the Washington Post has discovered his inner constitutionalist. Klein and his fellow liberals have been kvetching about the filibuster ever since it forced Democrats to engage in inelegant procedural calisthenics to pass ObamaCare. Thanks to it, 41 united Republicans prevented 59 Democrats from bringing the bill to the Senate floor for a straight up or down vote, forcing Democrats to go "nuclear." This unspeakable travesty has traumatized Democrats and they've been champing at the bit ever since to remove this dangerous tool from the hands of evil, obstructionist Republicans.

Here's what Michael Conan of the New America Foundation said at the peak of the ObamaCare debate in November 2009:

Reforming the way Washington operates is hardly the sexiest of topics, but from a policy and even a political perspective, there are few more important issues on which Democrats should be focusing their energy. Quite simply, the filibuster has become the single tool that is undercutting everything Obama and the Democrats were elected to achieve.

Both parties have historically used the filibuster, but its overuse by modern Republicans stands at outrageous proportions.

And to help Dems make their case for abolishing the filibuster, Klein is arguing that not only is the filibuster not in the constitution, it is actually unconstitutional.

Klein relies for his analysis on one Emmet Bondurant whom he describes as a "go-to lawyer when a business-person can't afford to lose a lawsuit." Klein in no doubt trumpeting Bondurant's pro-business bona fides to imply that he is a conservative and not Klein's bedfellow. However, trying to establish credibility by disassociation sounds fishy to me given that Bondurant has launched a lawsuit to get the Supreme Court to scrap the filibuster.

In any case, using Bondurant, Klein claims that the filibuster is the product of a historical accident. It came into existence in 1806 when (after killing Alexander Hamilton in a duel) Aaron Burr killed something called the "previous question" motion as part of his noble effort to cleanup redundant laws from the books. That was the motion that senators used to end debate. Burr, in his infinite (un)wisdom, argued that Senators were all gentlemen so they knew when to stop talking and so there was no point in having such a rule in place.

No one exploited the loophole Burr created for three decades. Even subsequently, it was an annoyance only occasionally deployed. But now Republicans are using it to effectively require a supermajority of 60 Senators to pass all major legislations, something that the Founders actively opposed, Klein claims:

 The framers debated requiring a supermajority in Congress to pass anything. But they rejected that idea.

In Federalist 22, Alexander Hamilton savaged the idea of a supermajority Congress, writing that "its real operation is to embarrass the administration, to destroy the energy of government and to substitute the pleasure, caprice or artifices of an insignificant, turbulent or corrupt junta, to the regular deliberations and decisions of a respectable majority."

In Federalist 58, James Madison wasn't much kinder to the concept. "In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule; the power would be transferred to the minority."

In the end, the Constitution prescribed six instances in which Congress would require more than a majority vote: impeaching the president, expelling members, overriding a presidential veto of a bill or order, ratifying treaties and amending the Constitution. And as Bondurant writes, "The Framers were aware of the established rule of construction, expressio unius est exclusio alterius, and that by adopting these six exceptions to the principle of majority rule, they were excluding other exceptions." By contrast, in the Bill of Rights, the Founders were careful to state that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

What choice does a gal have when Klein quotes Hamilton and Madison but to quote…..Harry Reid, the Democratic Speaker of the Senate? Likening filibuster reform to opening a "Pandora's Box" in his 2008 book The Good Fight, Reid wrote:

It was just a matter of time before a Senate leader who couldn't get his way on something moved to eliminate the filibuster for regular business…And that, simply put, would be the end of the United States Senate … A filibuster is the minority's way of not allowing the majority to shut off debate, and without robust debate, the Senate is crippled.

Amen.

Reid has since changed his tune and is saying that he is now opposed to the filibuster because of continuous Republican abuse and is even contemplating legislation to scrap it. So crippling the Senate for future generations is better than letting Republicans raise a little hell now and then? How is that for enlightened thinking?

Moving on.

Klein might well be right that a filibuster contradicts the views of the Founders (although, out of curiosity, I'd like someone to tell me what the more libertarian-minded Thomas Jefferson, had to say about it). But scrapping the filibuster won't be good for other things that the Founders seemed to care about more deeply than majoritarian rule such as: individual liberty, limited government and checks and balances between various branches of government (not just the balance-of-power between large and small states that Klein alludes to).

There is nothing sacred about the filibuster, or any procedural rule for that matter, of course. Such rules are not ends in themselves. They are means to ends. And so the question for partisans of limited government is does the filibuster help or hurt their goal?

If, say, Democrats were trying to scrap the Patriot Act against Republican wishes, then Republicans filibuster would be bad. Conversely, if Republicans wanted to deregulate the airline industry or cut entitlement spending against Democratic wishes, then a Democratic filibuster would be bad.

But by and large those are not the kinds of issues that preoccupy our elected leaders. Neither party's politicos are much inclined to sit around in their august offices thinking up of creative ways to cut government and give up their own powers. To the contrary. The vast bulk of Congressional business involves expanding government. In such circumstances, odds are, every time the opposition, whether Democratic or Republican, uses the filibuster, it will end up doing more good than harm.

Democrats are pissed off because filibuster rules have prevented them from enacting their grand plans even when they controlled all the branches of government. But for limited government types that precisely is its beauty.

What's more, ending the filibuster will also mean that a president who controls Congress will have little incentive to reach out to his political opponents.  This might be fine with Democrats so long as President Obama is in office. But do they really want a President Romney with the help of 51 Senate Republicans (not an impossibility in the next election) saying "bug off" to Democrats in order to, say, raise middle classes taxes to make the American military so powerful that "no one will ever think of challenging us?"

As they say, be careful what you wish for….

(Actually, I'll wager that Democrats will drop their anti-filibuster crusade the minute President Obama hops onto the helicopter for Chicago from the White House lawn. They are only revving up it up now just in case he doesn't and they keep control of the Senate.)