The Magazine

Reid v. Madison

Dec 24, 2012, Vol. 18, No. 15 • By JAY COST
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For years, liberal pundits and Senate Democrats have talked about altering the filibuster, the procedural rule that requires a 60-vote supermajority to end debate in the U.S. Senate. The device has been a burden for majority leaders for generations, and it dogged Majority Leader Harry Reid and President Obama during the liberal bonanza that was the 111th Congress of 2009-2010.

Sen. Harry Reid

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Now, Reid and some Senate Democrats have proposed a way to limit the filibuster. Their problem is that altering it in any way would require a two-thirds vote of approval in the chamber, as with any rule change. But Reid and company think they can finagle things at the beginning of the next session with just 50 votes (plus the tiebreaker of Vice President Joe Biden). In a classic example of Orwellian doublespeak, the left has taken to calling this the “constitutional option”; the right calls it the “nuclear option.” 

Reid’s plan is not to do away with the filibuster altogether, but generally to make life much harder for a minority that intends to use it. Reid would abolish filibusters on motions to proceed to debate, which the minority has used increasingly in retribution for the majority’s habit of keeping them from offering amendments to legislation. The minority would also have to perform “talking filibusters,” much like that famously seen in Mr. Smith Goes to Washington. This requirement effectively ended in the 1970s with the introduction of a new “tracking” system that allowed the Senate to deal with more than one piece of legislation at a time, thus allowing for filibusters that did not shut down the Senate. 

Do conservatives have a dog in this fight? At first blush, the answer might appear to be no. With House Republicans in control on the other side of the Capitol, it is not like the filibuster is the last line of defense over the next two years. Moving forward, Republicans retain a substantial geographical advantage in the battle for the Senate; small, rural states tend to be more conservative, and even though the GOP has failed to capitalize on this in the last two cycles, over time it’s a fair bet the party will at least split control of the Senate. 

Even so, conservatives—indeed, all devotees of the Constitution—should oppose the Senate Democrats’ “constitutional option.” Not just the innovations themselves, but especially the means by which Reid intends to bring them about, threaten the character of the Senate, and endanger a key Madisonian check on the more dangerous tendencies of aggressive, fractious majorities.

There’s one point on which liberal pundits are correct—the filibuster is not in the Constitution. Though Article I, Section 5 gives each chamber the right to “determine the Rules of its Proceedings,” it was not until 1806 that the Senate dropped its rule allowing senators to call for a vote to cut off debate. Without such a rule, the filibuster became possible, yet the historical evidence surrounding this change does not support the conclusion that senators wanted to create the possibility of unlimited debate.

But the fact that neither Madison nor his cohort designed the filibuster does not mean it is not Madisonian. It is—deeply so. Arguably, it is one of the most vital Madisonian devices left to thwart ambitious majorities.

The goal of the Framers in the summer of 1787 was to design a Constitution that accomplished two goals at once. First, it would create a government powerful enough to address public problems. The national government under the Articles of Confederation was impotent in nearly every imaginable way, and the result in the 1780s was unmanageable economic panics, social tumult, and a general fraying of the bonds that had held the 13 states together during the revolution. The national government created by the Constitution was meant to create a unifying force.

But having empowered the beast, the Framers then sought to cage it. The vast system of checks and balances, the principle of federalism, the different ways by which the government would be filled (the Electoral College for the president, state appointment for the Senate, popular vote for the House), and the Bill of Rights all were meant to limit government action to areas where there was a broad and deep majority in favor of the action, and those where natural rights would not be trampled. The government could act, but only when the actions benefited the public as a whole. Fleeting, narrow majorities might have a moment in the hot D.C. sun, but they would never acquire enough power to railroad a minority.

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