How to conduct a rational filibuster reform
The majority rule is a conservative principle. Filibuster reform is possible, but further restrictions should be careful.
Demands to change the filibuster rule in the Senate are not unreasonable. The Constitution does not require a majority for ordinary legislation, only for questions of constitutional structure: constitutional amendments, ratification of treaties, impeachments, expulsion of members, overwriting of vetoes and removal of presidents according to the 25th amendment. Still, the filibuster has clogged itself modest and incremental changes in minimum wage, immigration and labor laws, and built explosive tensions and inequalities for several decades.
The pretext that the rule avoids majority tyranny has waned. In practice, any Senate legislation requires a three-fifths vote, a recipe for a standstill when the Senate is almost evenly divided, which ensures that something like a political earthquake is required to pass all of the major laws.
However, the complete elimination of the filibuster would ignore the framer’s insight into the kind of problems that super-majority requirements warrant. It is clear that today’s non-partisanship, the product of three liberal causes – redistribution, nationalization of campaign funding through so-called reform laws and increased use of direct primaries – has led to temporarily triumphant majorities striving for stability through changes in the constitutional structure under the guise of ordinary legislation .
Today’s democratic leadership is trying to abolish the electoral college through an intergovernmental pact, to fill the Senate by admitting new states with below-average populations, to grab the Supreme Court by expanding and grabbing the electorate – by disenfranchising offenders and 16-year-olds by they deliver frail and apathetic nursing home residents to early polling stations on wholesale lots and even remove the restrictions on purchased mail-in votes and voter identities.
Therefore, any change to the filibuster rule should exclude four classes of law from its scope: ratification of intergovernmental treaties, changing the size of the judiciary, admitting new states and legislation relating to the right to vote, and redistribution and redistribution. It is one thing for the majority to be allowed to exercise their will, subject to securing elections every two years. It is a different matter for potentially temporary majorities to make themselves permanent by pre-determining the results of future elections.
The approval rates of the public congress have rarely exceeded 20 percent since 2012 and are currently at 15.3 percent. This is a result of the Senate’s apparent inability to enact significant laws under the three-fifths cloture rule. When the Senate majority leader at the time, Robert Taft, spoke of filibusters in 1946, he prophesied the fall of Congress to its present low level. In a letter on the Full Employment Act establishing the Council of Economic Advisers, Taft stated: “I have always said that I will would vote for a bill after a reasonable debate. After all, we have a system based on majority rule. If the minority undertakes to prevent majority action beyond reasonable limits, Congress is likely to be completely discredited. “At the beginning of 1949 he again declared his position on Cloture to Walter White of the NAACP:”[I favor] a fair amount of debate on public issues and enough time to inform the public about what is being done. Two thirds is maybe more than necessary. I’ve always voted to close. . . when I feel that enough time has been given. “
Filibusters have become more effective in recent years, despite the erosion of super-majority requirements with the advent of former Senator Robert Dole, dubbed the “filibuster des gentlemen,” where Senators do not speak but merely state their intention For this purpose, failed cloture votes are triggered, which fail due to a lack of the required super majority. Even nominations that are in the majority can be delayed by 30 hours using this device. Such is the fate of almost all of President Trump’s nominations, even the least controversial.
In these circumstances, it is not surprising that Congress has been increasingly circumvented, on the one hand through harsh and divisive legislation and on the other hand through abuse or attempted abuse of executive rules.
Ordinarily, a change of control in the Senate would encourage the passage of laws that move some distance from the majority party’s preferences but not bring overall victory, and leave the promise of a change the other way when control changes into two years. However, when majorities are unable to legislate at all, stasis arises which, along with the pressure for change, leads to calls for sudden and even extra-constitutional action. And if majorities try to assert themselves against the consequences of future elections, the filibuster is legitimized in its current form.
Those who are skeptical of the filibuster rule change should not be embroiled in arguments over arithmetic, but should make this important distinction.
Legislation is a compromise agency and in a democracy they must be allowed to do their normal job on issues such as minimum wages, labor and immigration laws. What remains is the protection of the executive veto by a president, who is normally sensitive to a national majority, as well as judicial review. The majority rule in this sense is a conservative principle that allows adjustments without explosions. The last two congresses have drastically restricted the filibuster. All other restrictions should be careful and exclude changes that are intended to generate permanent majorities. They should stop work, or at least limit their use to those who actually speak and participate in public debates.
George Liebmann is President of the Baltimore Bar Library Company and author of numerous works on law and history, most recently Vox Clamantis in the desert: an iconoclast investigates four failed administrations (Amazon: 2021).