I haven’t yet commented on the Senatorial kerfuffle over the filibuster, judges, and the “nuke-u-lar” option. I haven’t read anything terribly insightful about the whole thing. And I’m not going to offer anything amazingly illuminating here. However, there are a couple of things to keep in mind. First, people should see through the “democracy” rhetoric that some are resorting to instead of good substantive arguments about the filibuster’s merits. Rhetoric about democracy and the constitution is cheap, and it doesn’t take much reflection to show that making the concept of democracy determinate is no easy task.
On the matter of constitutionality, I don’t see a problem with the filibuster. The Constitution seems clear: Article I, Sect. V says (in part) that “Each House may determine the rules of its proceedings…”
Of course, one might argue that while the Constitution gives each chamber the right to determine its rules contrary to the ideals of democracy, they ought–as a matter of civic virtue–to do their best to ensure that their rules are on the democratic up-and-up. I’m inclined to agree here, but it is not clear to me that allowing minorities limited control of legislative actions is undemocratic. It is not obvious that placing certain constraints on the legislative will of simple majorities is undemocratic. Democracy has an interest in reproducing itself, and the conscience of certain (large) minorities should be heard when they believe it is important enough to stand up against the actions of majorities. This of course does not mean that the actions of the minority ought to be political costless; indeed, any minority that invokes such a privilege ought to be willing to suffer the consequences. But if there is reason to allow minorities this privilege, its invocation cannot constitute reason to revoke the privilege. What it can constitute is reason for voters to make a minority even more of a minority in the next election.
As for the history of the use of a filibuster, much of the rhetoric is irrelevant. I’m not going to get into the facts, because I don’t have time to learn them. Yet there is one important point that can be made. Many Republicans are claiming that while the filibuster is generally an OK institution, it should not be used on judges. This is a bizarre claim, given that most of the legislation that passes through Congress can be changed or repealed as soon as an opposing majority is convened or elected. Yet judges are appointed for life. It thus seems that if the filibuster has any role at all, its place is in the confirmation of such judges, not in legislation that can be changed by successive majorities.
The final point is the most devastating, in my opinion, for those Republications that invoke the ideals of democracy when opposing the use of the filibuster. The argument is that democracy prevails only when the will of the majority is effective, and the filibuster allows that will to be stymied by a minority. This argument becomes laughable when put in the mouths of Sentors. Robert A. Dahl, the eminent political scientist and historian, calls the very existence of the Senate as we know it “a profound violation of the democratic idea of political equality” (How Democratic is the American Constitution?, p. 49). As you can read in this review of Dahl’s book, the Senate’s very existence would be a blow to democracy if the current Republican argument is correct:
[H]alf the U.S. population sends 18 senators to Washington while the other half sends 82…California gets two senators; the 20 least populous states, which combined have roughly the same number of people as California, get 40 senators.
It is thus possible for a coalition of Senators from relatively small states to pass legislation by simple majority even though the elected representatives of a majority of Americans are against it. Senatorial carping about the undemocratic nature of the filibuster is thus a bit like Prince Charles denouncing the existence of House of Lords.
Howls of outrage (2)