Saturday, November 25, 2006

Kill the Filibuster

Here is another guest column from the iconoclastic Paul Kujawsky, a Vice President of Democrats for Israel, and a member of the California Democratic Central Committee. We suspect that Paul slums here in the Hedgehog Blog when he has columns that his Democratic Party colleagues won't enjoy reading. Whatever Paul's motives, his contributions are welcome.


Suddenly the filibuster can't be looking so good to Democrats.

When Republicans controlled the Senate, Democrats claimed that the filibuster is a critical tool for maintaining the checks and balances at the heart of a liberal democracy. Today, Democrats are looking forward to a 51-49 majority in the Senate, and the bloom is off the filibuster rose. Nothing has changed, except who gets to use the filibuster against whom.

Discussion and debate are essential to the life and vitality of a deliberative body like the Senate. However, the filibuster is like a cancer—uncontrolled speechifying that gradually shuts down and kills the Senate's ability to transact business. Moreover, the requirement of a supermajority to end any filibuster (that is, the fact that a minority can keep the filibuster rolling along) makes the maneuver inherently undemocratic.

This tradition of unbuttoned, obstructionist talk is just that—mere tradition. There is nothing in our Constitution hinting that a minority of senators should have the power to hold the majority hostage. It's hard to imagine any principled argument in favor of the filibuster, except perhaps the "Mr. Smith Goes to Washington" argument: The Senate is so corrupt that it's better for one honest senator to throw sand into the gears than let it continue its malignant work. But however much you may like Jimmy Stewart, that's not a serious contention. Democracy has its own way of punishing corrupt or otherwise unpopular senators. It's called "elections," and as we just saw, it works pretty well.

The real reason for the unreasonable vigor and longevity of the filibuster is that it requires the cooperation of the minority to kill it. Senate Rule XXII requires a three-fifths supermajority to end a filibuster. Moreover, the same rule says that a supermajority of two-thirds is needed to end debate on amending the rule. (A truly dumb provision.) In short, a minority can filibuster any attempt to do away with the filibuster.

Another approach was proposed not long ago, one that would bypass Rule XXII. After the 2000 election, Democrats were blocking President Bush's judicial nominations. The Republican plan was to raise a point of order asserting that it is unconstitutional to filibuster presidential nominees under the "Advice and Consent" clause. The presiding officer would rule favorably. The Democrats could have appealed the ruling, but - and here's the key point - the chair's ruling could be sustained by a simple majority. (The bipartisan "Gang of 14" ultimately derailed this scheme.)

This so-called "nuclear option" is not optimal, however, because it would only apply to presidential nominees, leaving the filibuster alive to hinder the rest of the legislative agenda. In a properly functioning liberal democracy, extraconstitutional restraints on the democratic character of the legislature are unjustifiable. In the coming months, Senate Democrats and Republicans will have plenty of political issues with which to beat each other bloody. How refreshing it would be if they would begin the new term by agreeing to a simple good-government reform. Kill the filibuster.


Blogger Mitch said...

"Kill the filibuster "

Better yet, repeal the 17th Amendment, and return the Senate to what the Founders intended.

Gridlock is good. Gridlock works (apologies to Gordon Gekko). Anything we can do to stop the passage of more legislation is a plus to individual liberties (except legislation repealing other legislation!!) 

Posted by Mitch Wayne

Sunday, November 26, 2006 9:51:00 AM  

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