02 March 2009

It's Filibuster Time! Can't Touch That Legislation

With all due respect to Hammer, great article by Jean Edward Smith (go Marshall!) in this morning's NY Times. I'm not a fan of the way Congress operates, and from the look of the opinion polls and general grumblings from the American public over partisan politics, it seems that it would behoove Congress to be a little less catholic and a little more puritanical in their employment of the filibuster. I think that would be a win-win idea on which we could all get aboard.

Interestingly enough, the idea that the Senate composition (2 senators from every state regardless of size) over represents most of the smaller, less populous states is an idea on which D-bro D, the gun-totting, Democrat-hating side of the family tree, and I can agree. As Smith opines,
The routine use of the filibuster as a matter of everyday politics has transformed the Senate’s legislative process from majority rule into minority tyranny. Leaving party affiliation aside, it is now possible for the senators representing the 34 million people who live in the 21 least populous states — a little more than 11 percent of the nation’s population — to nullify the wishes of the representatives of the remaining 88 percent of Americans.

The Senate adopted Rule 22 to permit cloture to be imposed (limiting debate) if two-thirds of the Senate agreed. ...But invoking cloture proved difficult....In 1975, Rule 22 was amended to allow 60 senators, three-fifths of the Senate, to close off debate. The results have been better, but not markedly so. In the 108th Congress (2003-2004), cloture was attempted 49 times and was successful only12. What is more disheartening is the growing frequency with which the filibuster has been resorted to.

Nevertheless, the use of the filibuster as an everyday tool of legislation stands the idea of democratic government on its head. Instead of majority rule in the Senate, the tyranny of the minority prevails.

In the great legislative reapportionment cases of the 1960s, the Supreme Court defined democratic government as majority rule based on the principle of one person, one vote. It is time to apply that standard to the Senate.
I couldn't have said it better myself, but let's do look at those numbers a little closer. We are talking about the representatives of 34 million people subverting the will of the remaining 270 million Americans. Hardly fair. Hardly prudent. Shouldn't be legal. The most amazing thing to me is that they are able to do it through the manipulation of 41 men.

It is a sad day when a simple majority isn't required to forward the will of the people, but when the minority group must be silenced for the real work of America to move forward. What the Senate has created are conditions in which no dissenting opinion can be tolerated lest nothing get done. D-fav J is a fan of greater representation for minority opinions, and on this issue I think I can see his point. If minority opinion were diluted, we could count on less of a unified minority voting block to undermine important, well-supported legislation. At least on a day-to-day basis. I could envision times (stimulus, budget, etc.) when it might serve the interests of the minority leaders to vote as a block so that their interests were taken into consideration, but the vast majority of legislation wouldn't be at a standstill by a minority voting in lockstep with one another.

It is time our elected officials actually represented the people who elected them. And while the people who elected them DO want their individual interests represented in government, they do not want it (I tend to think) to stop government from functioning. It seems to me Congress hasn't gotten the message. They are in "my way or the highway" mode and can't get out. Any thoughts?


  1. While I believe it is important for our government to work efficiently and effectively when it comes to positive reform that benefits all parties, I also believe that we need mechanisms to protect the minority viewpoint, especially when the majority seeks to restrict the rights of the minority based on an ideology which is not universal. I admit that I have built into this statement a degree of subjective fuzziness, which may prove difficult to realize in practice. That said, I feel the minority should have sufficient protection to promote compromise rather than force debate to the point of ridiculous inefficiency when nothing useful is being said. We need only look back a few years to see the tables turned in Washington, and only to the last election when a bare majority in California revoked the rights of a minority group.

  2. I think comparing a referendum on gay marriage and the ability of Congress to flat out stop every piece of legislation put before them (and the increasing willingness of them to do so) are two entirely different things.

    I stand firm in my belief that Prop 8 in California was unconstitutional and will not stand up to constitutional challenge. The people do not have the right to abridge the rights of any group based on race, creed, sexual orientation, or any other separatist category. It is one thing to say that gays, women, minorities, etc. don't have the right to "special" rights, but certainly it can't be constitutional to revoke rights held by the rest of the population.

  3. I'll agree that representative governance and a direct vote of the people are quite different mechanisms in our democracy, and that failure to accomplish ANYTHING and ACTING against the minority view are also quite different, but they all relate to powers given to majority and minority views, and the minority view has value. I agree that the filibuster system in the Senate is broken, which is the main point of your post, but when you say that "... the minority group must be silenced for the real work of America to move forward.", I take exception. In my opinion, dialog and compromise are the way forward, and Republicans and Democrats are equally at fault for failure in this area.

  4. Ahhhh, now I see. I'm afraid you may have misunderstood my point, which is: given that Congress is broken, the only filibuster-proof way to accomplish anything (i.e., pass legislation deemed vital to the country's interests) is to completely obliterate the opposition. It shouldn't be the case that Democrats or Republicans MUST have 60 representatives willing to vote as a block on every piece of worthy legislation for it to pass. But that is what the current climate demands. What is scarier is that in the next round of elections, Democrats could conceivably pick up those additional seats and that would be the end of the Republican voice in Congress for at least 2 years. They would be completely impotent. This is not the way it should work. That vocal minority is sometimes the only thing to keep 'em honest and keep 'em on top of their game. It's the system that's broken and Congress broke the system.

    Tell me, with Democrats so damn close to the filibuster-proof majority, where is the incentive to fix the system now? They have driven the American people to desperate measures (to favor one party so overwhelmingly to create a filibuster-proof majority) because of their lack of restraint (on both sides of the aisle). This can't be good for America. Like I said, this is the one time I've been able to see some reasonably sane justification for the election of 3rd and 4th and 5th....party representatives.

  5. Well, I think we are in agreement. Perhaps my ardent defense of the minority stems from living in Utah, where the Republican party holds a supermajority in the state legislature. The minority viewpoint has no power to reign in the status quo, and they are wildly taking us down the wrong road (in my humble opinion).

    I also think there is tremendous value in a multiparty system, but in Utah, we still need to build a two party system first.