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

Newscom

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.

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.

But the bitter must be taken with the better—and in this instance, it is worth remembering that, just as the left has captured the Democratic party, so also has the Democratic party captured the left. This means that liberals, once opposed to the patronage-style politics that has characterized the Democratic party virtually since its founding, have since become the masters of it. For every noble, high-purposed program that liberals wish to implement but cannot because of the filibuster, there is at least one naked payoff to a client group that is similarly stymied. So while liberals might bemoan that the “public option” (truly a public-spirited piece of legislation if ever there was one, they would argue!) was dropped because of the filibuster, so, too, was “card check” (a crass payoff to the unions, if ever there was one!).

In other words, one might disagree with the methods by which our governmental structure seeks to “break and control the violence of faction,” as Madison put it, but one cannot deny that such violence should be broken and controlled. The filibuster manages to do this. Electoral victors should be allowed to govern—that is at the very heart of American republicanism—but they should not be allowed to do so simply at the expense of the losers. The filibuster keeps them from doing that.

Reid’s reforms stop short of eliminating the filibuster altogether, but they arguably do something worse. Another Senate practice that checks ambitious but narrow majorities from railroading minorities is the principle that any rule changes must receive the support of two-thirds of the chamber. Reid’s reforms, if they go into effect, will only do so by severely undermining that concept. In the future it will be easier for a majority not only to do away with the filibuster, but to redesign the Senate as it sees fit.

Reid’s ambitions are reducible to a simple fact: The Democratic party’s electoral coalition is too narrow for its ideological ambitions. Liberal Democrats know full well they have no hope of obtaining a filibuster-proof majority in the upper chamber, even though they enjoyed exactly that in decades gone by. The reason? Their program is now too narrow—playing factions off against each other, and ultimately governing for Democratic-voting groups at the expense of others. Such a platform has no hope of obtaining the necessary votes under the current rules of our government, hence Reid’s crass attempts to change them.

Senate Minority Leader Mitch McConnell is right to oppose Reid, and Madisonians of both parties should hope he succeeds.

 

 

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