Democracy and the Filibuster

The Senate vote Thursday to curb the use of filibuster against
judicial nominees, over the objections of the Republican minority,
can only be seen as a terrifying development. Why, next thing you
know we could be deciding all sorts of things by majority vote.

The average American may think deciding things by majority vote
is the basic idea of our democracy. But say something like that,
and you risk getting a lecture on how America is not a democracy
but a constitutional republic, and that the framers took care not
to give too much power to the people, and that they invented all
sorts of devices to keep them from running out of control.

Defenders portray the filibuster as an essential check on the
passions of the mob. Columnist George Will defended it in 2010 by
quoting Thomas Jefferson’s belief that “great innovations should
not be forced on slender majorities,” and expressing doubt that “a
filibuster ever prevented eventual enactment of
anything significant that an American majority has
desired, strongly and protractedly.”

But Will, like today’s Senate Republicans, has not always taken
such a positive view. In 2003, when Democrats used it to keep the
Republican Senate from confirming the Republican president’s
judicial nominees, he warned of dire consequences if “Senate rules,
exploited by an anti-constitutional minority, are allowed to trump
the Constitution’s text and two centuries of practice.”

He was alluding to something important there: The filibuster,
which allows 41 senators to prevent a vote, is not part of the
ingenious design of the framers. It is part of the Senate rules,
which did not allow it until 1806.

As political scientist Sarah Binder of the liberal Brookings
Institution has noted, that was not the product of a considered
judgment but “the unintended consequence of an early change to
Senate rules.” Even so, “it took several decades until the minority
exploited the lax limits on debate, leading to the first real-live
filibuster in 1837.”

Those who defend the filibuster as an integral component of our
system are reminiscent of the believer who distrusted modern
translations of the Bible: “If the King James Version was good
enough for Jesus, it’s good enough for me.”

There is something to be said for promoting deliberation by
impeding action. But that’s what the Constitution did, requiring
legislation to gain the approval of the House, the Senate and the
president. It also required judges to win not only the president’s
nomination but the approval of a majority of senators.

Under the established filibuster rule, though, a majority of
senators often did not have the power to do what the Constitution
says—namely, to provide “advice and consent” on presidential
nominees. A minority of members could block them from even taking a
vote.

This custom was not part of the framers’ handiwork; it also was
not in keeping with the practice of the Senate over most of its
history. From 1951 to 1961, there were only two votes to end a
filibuster. From 1961 to 1971, there were 26. From 2003 to today,
there were 423. What was once a last resort in rare emergencies has
become a first resort in routine business.

Republicans and Democrats can debate which party has most abused
the option, and which has been more hypocritical in changing its
mind about the filibuster once it went from the majority to the
minority or the reverse. Neither side has acted with selfless
regard for the will of the people or the proper functioning of
government.

The change adopted by the Senate has been dubbed the “nuclear
option,” as though it were unimaginably destructive. But all it
destroys is the capacity of the minority party to frustrate the
operation of the legislative branch. And it applies only to
executive and non-Supreme Court judicial nominations. The old rules
still apply to other matters.

Conservatives sometimes act as though democratic processes are
something to dread. Uncontrolled, they can be scary. But under our
Constitution, they are carefully regulated to prevent rash
action.

The framers, however, did not intend to let the minority prevail
as a general rule. They did require a super-majority vote to
approve treaties, override presidential vetoes and pass
constitutional amendments. Had they wanted to require 60 votes to
confirm judges, they knew how to do it.

In most things, though, they chose to let the majority rule.
It’s not a perfect system, but there are worse ones.