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.

Comments

The Founders feared minority rule even more. That of course was the very anthesis of republican government, and they had ample experience of its perversities under the Confederation when a single state could, and did, block vital public measures. Alexander Hamilton in Federalist 22 makes one of the best cases against the filibuster you're likely to find anywhere:
But this is not all: what at first sight may seem a remedy, is, in reality, a poison. To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. Congress, from the nonattendance of a few States, have been frequently in the situation of a Polish diet, where a single veto has been sufficient to put a stop to all their movements. A sixtieth part of the Union, which is about the proportion of Delaware and Rhode Island, has several times been able to oppose an entire bar to its operations. This is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory. The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy.

James Madison agreed
As connected with the objection against the number of representatives, may properly be here noticed, that which has been suggested against the number made competent for legislative business. It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale. In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences. Lastly, it would facilitate and foster the baneful practice of secessions; a practice which has shown itself even in States where a majority only is required; a practice subversive of all the principles of order and regular government; a practice which leads more directly to public convulsions, and the ruin of popular governments, than any other which has yet been displayed among us.

Frankly it's simply disgraceful intellectual laziness for Progressives to allow the right wing to hijack the Founders. Much of contemporary conservatism would have horrified them, its anti-intellectualism, its defense of gross inequality of income (nearly every Founder believed a general equality of wealth was a sine qua non for free government) and its fanatic individualism. While they may not exactly have been nascent New Dealers they still have a some valuable contributions to our contemporary conversation.

Madison's comments are in Federalist 58

The intent of the first few Congresses in creating filibuster rules, which is probably close to that of the Framers, was not to obstruct PERPETUALLY, but to DELAY FOR REFLECTION, legislation that a minority of Senators found odious. In theory, their prolonging the debate, but NOT FOREVER, could either convince some of the majority to change their votes, on the merits of a bill, or expose their counter-arguments, after enough repetition, to their home voters, thus preventing re-election; and in view of that prospect, allow a vote after a reasonably extended debate.

Where we went wrong is that we have evolved a two party PARTISAN system, in which most members of the House and the Senate RARELY consider opposing debate points, and rarely vote on the merits of a bill (consider that the majority of the House voted against the interests of a substantial part of their own electorate in trying to drop food stamps from the farm bill, in voting futilely against the ACA without considering their own constituents who would get better health care from it, etc.); and since their opponents are not going to respond to arguments on the merits anyway, filibusters decayed into readings from the telephone directory or recipes from a cookbook, just to take time. Then even that pretense was eliminated by the "silent" filibuster; no cloture vote is taken until the supermajority needed for cloture has pre-approved the vote.

We may still have a few situations in which the delay intended by the "post-Framers" (as we may term them) would keep us from enacting a grievous mistake (like the PATRIOT Act), but filibusters should be (1) done by actual speaking on the topic in question, (2) limited in both total time and per-Senator time, and (3) followed by AUTOMATIC calling "the question" after the times have expired.

The House, incidentally, now has a form of filibuster in the "Hastert rule" promoted by John Boehner, which keeps any bill from being debated unless a "majority of the majority party" are on record in favor of it, even (and ESPECIALLY) if it commands a majority of the TOTAL House membership. The reform needed here, I believe, is to eliminate partisan control by whichever party gets ONE more member than the other; this could be done, for example, by rotating the Speakership several times in a session, with each party controlling it for a time proportional to its majority or minority status. This current session would thus have, say, 6 weeks of Boehner alternating with four weeks of Pelosi, with an occasional few days being run by the Independent caucus.

We do need to protect minority rights in Congress and the state houses, in both senses: the minority PARTY at any given time, and people in an inferior socio-economic position because of a minority GROUP affiliation. Sometimes the majority PARTY has to protect the human and civil rights of a minority GROUP, over the objections of the minority PARTY, and sometimes the minority party has to find a way to prevent, or delay, votes of the majority party that HARM the rights of minority citizens.

Any way you grind it, the process is still like making sausage.

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