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Reid v. Madison

Dec 24, 2012, Vol. 18, No. 15 • By JAY COST
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Political parties sprang up almost overnight to deal with the problems created by this vast dispersion of power. And political parties effectively undo, or try to undo, what the Constitution does. Where the Constitution disperses power across various sectors of government, the parties centralize that power, effectively creating an extra-governmental conspiracy. There is nothing in the Constitution, the Federalist Papers, or Madison’s notes on the Constitutional Convention that predicts a senator like Harry Reid would be in a long-term alliance with a president like Barack Obama—they were to be rivals, in theory. But in practice, they are allies because of their shared party.

And thus, ambitious politicians found a loophole in the Madisonian framework: If a party acquires control of the two main branches of government, it can do an end run around the system of checks and balances. In its place can arise a form of policymaking that often favors the many at the expense of the few, one of the fears that haunted the Framers.

It is here where the filibuster can offer a final check on the ambitions of a factious majority. It is relatively easy for a party to capture the presidency and the Congress; indeed, there has been unified government in 6 of the last 10 years. But it is exceedingly difficult to acquire 60 Senate votes to break a filibuster.

Thus, the filibuster serves an important Madisonian purpose. It requires a party majority in the Senate to deal with some subset of the minority, and thereby prevents the federal government from yielding entirely to the demands of one faction at the expense of another. Put another way, one-party control of a government all but guarantees that public policy will reflect the ideological ambitions of the majority, even with the filibuster; nevertheless, it tempers that ideological tendency. More important, the filibuster ensures that the majority party cannot use the government to carve out for itself a permanent position of power. The kind of factional gamesmanship the two parties like to play at each other’s expense is frustrated by the filibuster.

What of the arguments the left puts forward against the filibuster? The most common one is that it prevents the Senate from being a “majoritarian” institution, which is held up to be some kind of ideal. Yet majoritarianism is not the be-all and end-all of our constitutional regime. If it were, then the Senate itself wouldn’t exist. Each state gets exactly two senators, regardless of population. What place does a majoritarian decision rule have in an institution that does not allocate seats by that rule? It may help the branch function on a day-to-day basis, but there is no inherent case for it.

Another common complaint is that the filibuster prevents the government from getting things done. Indeed, but that is the very point. The critical question is: What sort of tasks are not being accomplished? By definition, they must be actions that fail to command a broad majority; otherwise, they would not run afoul of the filibuster. 

A quick perusal of the bills that have failed to pass through the filibuster over the last few years shows that many have at best a tenuous link to the “public good,” and were much more about rewarding loyal Democratic clients. Earlier this month, the Washington Post’s Wonk Blog—a vocal advocate of filibuster reform—highlighted 17 pieces of legislation that failed to pass the Senate because of the filibuster. Many of them were obvious payoffs to organized labor—like the Employee Free Choice Act, the Teachers and First Responders Back to Work Act of 2011, the Public Safety Employer-Employee Cooperation Act, and President Obama’s 2011 stimulus proposal. Others were similarly blatant political payoffs to powerful factions, like senior citizens. Still others were naïve class-warfare measures that would have created regional losers, like the Repeal Big Oil Tax Subsidies Act. In other words, the filibuster achieved almost exactly what a Madisonian would have hoped.

For generations, liberals have not really been counted among the Madisonians, i.e., those who cherish the system of checks and balances. The progressive view has long since echoed that of Woodrow Wilson—that our constitutional design inhibits social progress. In some important areas—like civil rights—that was undoubtedly true. The filibuster kept the segregationist regime in place for generations after the civil rights amendments were added to the Constitution.

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