Death of the Filibuster

Well, not really death, maybe more of a wounding. Well, not really a wounding, maybe more of a paper cut (ooh, but those things are nasty!), since the recent Senate rule change (see NYT article) blocked the filibuster only in regards to certain executive branch nominations and lower federal court appointments (not the Supreme Court). So it’s still fine to filibuster each and every one of the myriad other Senate bills that come up to help make the world safe for American business. But it raises an interesting question. How many votes should it take to decide something?

Our first response is that of course it should just be a simple plurality. What got more votes? If 51 people want Tom to be dog catcher (I’m sorry, Animal Control Officer) and 49 want Bill, then Tom’s got the job. That’s the default of democracy, right? But what if the Community Association is ordering pizza for its annual meeting? Should 51 meat lovers be able to order only pepperoni and sausage pizzas and force the 49 vegetarians to go hungry (or violate their principles)? That’s certainly “democratic” (small d) but somehow just doesn’t seem right. It’s what they call tyranny of the majority and of course has impacts far beyond pizza. After all, if Hitler found 51% of Germans (a not unlikely percentage) willing to say “Let’s get rid of all the Jews” and “Let’s invade everybody, even though we’re hopelessly outnumbered,” should the Germans have gone ahead with those plans even though a significant minority of the population thought “this is evil and insane and will destroy our country”? (the survivors getting to say “We told you so” after the war doesn’t make up for it)

No. Clearly some things are too important and/or too risky to enter into without more significant consensus than 51 to 49. Maybe 75% of people should need to agree to start a war?

But which things are that important? What decisions are so impactful that we would like to see more than 50.1% agreement? Hard to say—that would require some thought and careful analysis, substances that are in short supply in the government right now (and the country at large, for that matter). I suggested that going to war and ordering pizza are some possibilities (and the Constitution says amending the Constitution also is one) but there certainly are many others. Since it’s pretty hard to come up with a comprehensive list, the Senate, by permitting filibusters, has simply allowed significant minorities (originally 33%, now 40%) to decide on their own what issues they think are momentous enough to require more than 51% agreement. However, the original intent was that the minority would demand such greater consensus only when they had serious, strongly-held, principled objections (like to going to war or to denying Black people the vote). But the way the filibuster is now conducted, the “serious, strongly-held, principled” part has become simply “whenever we don’t like something.” Every vote has become vegetarians vs carnivores and the minority always feels justified in requiring a supermajority. Hmm. That doesn’t seem right either.

Eliminating the filibuster (either completely or only for certain types of bills) would just take us back to tyranny of the majority. But keeping the filibuster as it is makes every decision, from appointing postmasters to agreeing to pay bills we’ve already incurred, as momentous as going to war. What seems more sensible is to raise the bar for when a minority is allowed to put on the brakes. And that would involve coming up with some way to distinguish strongly-held, principled objections to major policy issues from mere annoyance at not getting one’s way. Now we know we can’t just ask politicians how important something is. They’re all capable of describing the closing of a post office in terms worthy of the apocalypse. No, we need them to demonstrate their level of commitment—prove that their issue is really important stuff and not just partisan pique. Perhaps holding their breath until they turn blue? That would be fun to watch, but probably too easy. The original filibuster rules required speaking until you turned blue. That’s a bit harder, how about that? Well, it demonstrated commitment but also blocked every other bit of occasionally-legitimate business of the Senate for an extended period of time. We need something that doesn’t stop the government in its tracks. Hunger strikes? Getting a face tattoo (“Block Senate Bill S. 47!”)? Shaving their head and painting their scalp green? Hmm, I sort of like the face tattooing, but maybe there’s something that also shows that their constituents go along with the idea. How about saying senators can only “super” a bill (ie, require a supermajority) if they present a petition signed by a significant percentage of their constituents? How many? I don’t know, but demonstrating buy-in by more than a core of rabid partisans would entail major effort that wouldn’t be undertaken at the drop of a hat (or bill) and would also ensure that senators couldn’t filibuster something that most of their constituents agreed with.

Anybody have other alternatives? Unlike the Congress, I’m open to ideas.

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