Filibustering Prevents Freedom Busting

With the start of the new year, the Left is determined to make good on at least one of its New Year resolutions – going after the Senate filibuster.

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With its typical arrogance, the New York Times’ lead editorial on Monday complained that the current filibuster procedure, which requires 60 votes to invoke closure and allow legislation to proceed to a Senate vote, “produced public policy that we strongly opposed.” The Times wants the dwindling Democratic majority in the Senate to ram through a major rule change on the first day of the new Senate session to weaken the minority’s ability to use the filibuster. Hendrik Hertzberg, senior editor of the New Yorker, agrees. Describing the filibuster as “the arsenal of senatorial death rays,” Hertzberg is also pressing for major changes that would defang the filibuster. You see, the Left just cannot accept the fact that perhaps its big government, anti-freedom agenda is the problem, not the speed bumps that managed to slow the agenda down. The filibuster is purposely intended to make the majority controlling the Senate deal with the minority’s concerns, out of which a larger consensus for big changes can emerge. For example, the majority of Americans opposed full-blown government-run health care. The Democrats running the House and Senate during the 111th Congress didn’t care. They managed to push through much of Obamacare anyway, against the will of the American people. However, thanks to the filibuster, at least they were not able to get their way with the most direct form of government control – the so-called public option. Cap-and-trade energy legislation may have been popular in Europe and at the United Nations, but would have been a job-killer here at home. The DREAM Act would have been the opening salvo for full-scale amnesty for illegal immigrants. Fortunately, the filibuster helped stop these ill-conceived initiatives, along with a massive pork-laden spending bill. But at the same time it helped foster a broader consensus on tax cuts and the new START treaty, which did pass during the lameduck session with bipartisan support. James Madison said in Federalist No. 62 that the Senate

as a second branch of the legislative assembly, distinct from, and dividing the power with, a first, must be in all cases a salutary check on the government

While the filibuster itself is not explicitly mentioned in the Constitution, it is both permitted as part of the Senate’s right to make its own rules for conducting its business and is consistent with the constitutional scheme of checks and balances. The filibuster helps prevent a rush to judgment by transitory legislative majorities. Otherwise, working in concert with a like-minded President, they can foist enormous, complex changes on the American people – changes that can influence our lives in fundamental ways long after the Senators who were part of the stampede move on. As the Supreme Court has recognized, “there is nothing in the language of the Constitution, our history, or our cases that requires that a majority always prevail on every issue.” Remember former House Speaker Nancy Pelosi‘s infamous statement that we would all have a better idea of what was in the Obamacare legislation once it was passed? It was as if James Madison had her in mind when he wrote in Federalist No. 62:

The mutability in the public councils arising from a rapid succession of new members, however qualified they may be, points out, in the strongest manner, the necessity of some stable institution in the government… a continual change even of good measures is inconsistent with every rule of prudence and every prospect of success… It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood

Progressives have already succeeded over the years in whittling down the effectiveness of the filibuster as a check on intemperate legislative action. It was during Woodrow Wilson’s administration that the custom of allowing unlimited debate in the Senate gave way to cutting off debate if a two-thirds Senate majority approved. This change became enshrined in what is known as Senate Rule XXII. The two-thirds threshold was reduced to 60 percent during the 1970s, but with the compromise proviso that any attempt to change Rule XXII further could be filibustered and only permitted to go forward if 60 percent of the Senate decided to end the filibuster. But progressives view any compromise with suspicion. Now the progressive opponents of the filibuster want to highjack Senate Rule XXII itself, and eliminate the supermajority requirement currently in the rule to end any filibuster against further amendment of the rule. In other words, they want Harry Reid‘s band of Democratic Senators to change Rule XXII by simple majority on the first day of the new session and then hold the Republican minority hostage by threatening to use their majority power to eliminate the filibuster altogether for all legislative action. The Republicans should call the Democrats’ bluff rather than seek any further compromise. Since the House is in Republican hands, no major new progressive initiatives are likely to get to President Obama’s desk for signature anyway. In two years, if Republicans succeed in winning enough additional seats to take a majority of the Senate, they can then get even and start to really undo the damage inflicted on the country by the Pelosi-Reid 111th Congress.