Who Cares What the Framers Thought about the Filibuster?

Even the most indefensible elements of the status quo always have their passionate defenders. The filibuster as currently practiced in the U.S. Senate has become particularly indefensible, and one of its staunchest defenders is Richard A. Arenberg, author of Defending the Filibuster. Arenberg has an op-ed in Politico summarizing his defense, which fails to convince.

I do agree with Arenberg on one point—the filibuster is constitutional. The Constitution does give the Senate the authority to set its own rules, and the filibuster violates no provision of the Constitution. Since I'm not a Republican nominee on the current Supreme Court, that settles the question for me however little I like the outcome. The Constitution gives the Senate the authority to permit the filibuster if a majority chooses to do so. Whether the Senate has exercised its authority wisely is another matter, however, and in this case it simply hasn't.

The core of Arenberg's argument is the protection that the filibuster allegedly affords against the "tyranny of the majority." But as Matthew Yglesias notes, even in theory it does no such thing with any reliability, since federal legislation is often necessary to protect minority rights. Moreover, the history of the filibuster makes the idea that it will heroically protect the rights of minorities a cruel joke. The filibuster was frequently used to defeat civil rights legislation throughout the 20th century. The beneficiaries of the filibuster are sometimes minorities, but these tend to be minorities—powerful business interests, segregationists, rural conservatives—who are already grossly overrepresented in the political process and have interests contrary to oppressed minorities.

It's telling that in trying to come up with an anecdote to make the filibuster seem appealing to non-reactionaries, Arenberg looks not to the United States Senate but to Texas: the ultimate failure of Wendy Davis's filibuster against odious abortion restrictions. "If a simple majority ... can change the rules at any time," argues Arenberg, "Wendy Davis’s will seem a lonely last stand indeed." But this isn't a convincing defense for two reasons. First of all, the Texas bill passed 19 to 11, so even a 60 percent supermajority requirement like the U.S. Senate's would not have stopped the bill. And while Davis is right on the merits, this is how it should be. The appropriate remedy is not to prevent majorities from governing but to elect supporters of reproductive rights to the legislature. In addition, it's important to note that these Texas majorities are not unconstrained even without a filibuster—many aspects of the Texas law will face a serious constitutional challenge in federal court.

There's another familiar element to Arenberg's argument that's worth challenging. Inevitably, he cites the authority of the framers:

While the calculation is potentially accurate, it grossly misrepresents the founding fathers’ design of the Senate. (It also assumes a scenario in which only senators representing the 21 most sparsely populated states oppose cloture—a highly unlikely circumstance that almost certainly has never occurred.)

The founding fathers greatly feared the “tyranny of the majority”—and they created the Senate to avoid what they deemed the rule of the mob.

One response to using the framers to defend the filibuster is that there's no particular reason to believe that they thought that supermajority requirements for basic Senate votes were a desirable protection for minority rights. The constitutionalism of the framers was a mixture of majority rule and checks on majority power; no support for any particular check can be inferred from this. The fact that they didn't include a supermajority requirement on Senate legislative votes even though they did for other things (such as veto overrides and constitutional amendments) tends to suggest that they thought that a routine supermajority requirement wasn't a desirable check.

But that's not the argument I'm inclined to make. Rather, my response would be even if the framers thought the filibuster was a great idea, so what? This kind of vulgar originalism is just as bad an idea when used to defend the filibuster as it is when people use it to assert that the filibuster is unconstitutional. We're bound by institutional choices the framers made and entrenched in the Constitution (unless it is amended.) But otherwise, there's no reason not to benefit from the centuries of experience that the American public had acquired since 1787. Even if the framers would have thought that the filibuster was the greatest thing ever, we would have no reason to defer to their wisdom any more than we're obligated to protect slavery or deny women the vote.

The filibuster has to be defended on its own merits, not on the coattails of the founding fathers. Which is a problem because it can't be. The American legislative process is already unusually cumbersome ("tyranny of the majority" isn't a major fear; the increasing inability of majorities to govern at all is.) So any further countermajoritarian requirement beyond what the Constitution requires faces a steep burden of proof. The filibuster doesn't even come close to meeting this burden.

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