The Filibuster and Freedom

It seems the Gray Lady's editorial board ha weighed in on the side of a number Democrat pols by arguing that it's high time we reformed the practice of filibustering in the US Senate.  Hmmm, I wonder where they stood when the GOP controlled the body and threatened the "nuclear option" in order to ensure up-or-down votes on judicial nominees?  Liberals love streamlined majority-rule democracy, except, of course, when they don't.

However, aside form the hypocrisy, the reforms suggested in the NY Times editorial appear reasonable enough and warrant further discussion at least.  But before we do, we need to be clear about what it is the filibuster is meant to achieve in the first place.

To state the obvious, the Founders were committed to democratic government.  For them, a government that did not rest on the consent of the governed was illegitimate.  But, and this is important, government by consent was not an end in itself.  Rather, it was but a means to an end, a very important means, to be sure.  That end was to secure unalienable rights to life, liberty, and property.  When any government, even democratic government, became destructive of that end, it was a problem.  Actually, when it was democratic government it was a very big problem.  Government by consent means by definition that the majority rules and what the Founders feared most about democracy was the threat to our unalienable rights that came from a concentrated and motivated majority, that is, from a tyranny of the majority. 

To forestall that threat, (in democratic government it's impossible to eliminate it altogether), they instituted several protective measures.  The first was a written constitution that formally outlined the limited power of the national government.  Second, they included within the constitution several measures to divide that power, first between the national and the state governments (federalism), and secondly within the national government itself (separation of powers).  Within the legislative branch they further divided its power between two houses, the Senate and the House of Representatives.  Moreover, they even further divided  that power by differentiating between the nature of representation within the two houses.  In the House, where representation is proportional to population, big states are big, and small states are small.  In the Senate, all states are equal, big or small.

As you can see, the Founders were very concerned to protect our unalienable rights from any and all concentrations of power, even concentrations that were democratic in nature.  So concerned were they that the parliamentary measure of filibustering, holding firth from the floor in order to prevent or delay a vote on a matter before the body from actually taking place, was embraced as a way to further frustrate a concentrated majority from exerting their will on the minority.  By Senate rule, in order to force a matter to a vote, a super-majority, three-fifth's of the Senators, must agree to halt a filibuster.  (It used to be two-thirds, so the rule's already been reformed before.)  The effect of all this is to increase the relative legislative power of a minority of Senators against the will of the majority, unless, of course, the majority is large.  As a consequence, the passage of legislation is typically slow, frustrating, and extremely inefficient.

So why did they put up with it?  Because it was a rule that was consistent with a constitution that in and of itself almost always guaranteed that the passage of legislation would be slow, frustrating, and extremely inefficient.  And why did they want that?  Again, because they wanted to secure our unalienable rights to life, liberty, and property against any and all concentrations of power, even democratic concentrations of power.

If the Senate decides to eliminate the filibuster altogether, or just make it easier to stop, they'll be empowering the majority at the expense of the minority, plain and simple.  Maybe we want to do that.  Maybe we need to.  But, in any case, we need also to be sure about what we're doing first.