Republicans, You Must Eliminate the Filibuster

Chip Maxwell
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Posted: May 24, 2017 10:55 AM
Republicans, You Must Eliminate the Filibuster

Republicans, if you want to govern the nation effectively, you must eliminate the filibuster.

I realize that Senate Majority Leader Mitch McConnell has declared that the general filibuster rule will not be touched. That was a blunder.

I realize that some Republican senators believe the filibuster is a sacred part of Senate tradition. They are mistaken.

I realize that some Republicans like having the filibuster as an option in case they find themselves in the minority on an issue. They are willing to jettison the Constitution for a procedural contrivance hostile to constitutional principle.

The term “filibuster” comes from 19th century Spanish and Portuguese "filibusteros" – pirates who captured ships and held them for ransom. That ought to tell you something right there. Individuals and minority factions are not supposed to be able to hold legislation hostage and thwart majority rule.

To support the filibuster, some cite the maxim attributed to George Washington that the Senate exists to cool whatever is produced by the hot-tempered House. The cooling effect is not produced by the filibuster; it is produced by a second house (the Senate) of members with six-year terms, thus giving them more electoral distance from voters’ immediate passions than House members, who have two-year terms.

The Constitution authorizes both houses of Congress to make procedural rules, but they can’t make rules that violate the Constitution. The Constitution identifies special categories for supermajority votes, such as overriding a presidential veto. Otherwise the business of Congress is supposed to be done by simple majority rule.

But isn’t it good to require the broader, bipartisan consensus needed to secure 60 votes?

Drafters of the Constitution debated that question. They said no. It’s too hard to get anything done.

Federalist Paper 58 explains why the Constitution rejects supermajority rule for legislative business: “The fundamental principle of free government would be reversed. It would be no longer the majority that would rule. The power would be transformed to the minority.” The Senate can’t amend the Constitution by applying a supermajority requirement to legislative business outside the supermajority categories specified in the Constitution.

The founders understood that majority rule maximizes liberty. We maximize freedom by going in the direction most people want to go. There’s no tyranny of the majority as long as all parties are free to speak and vote as they want. The true tyranny is letting the minority force the majority to go in the minority’s direction.

Case in point: The filibuster became established in the 1800s when pro-slavery Southern Democrats used it to block federal legislation hostile to slavery. Its other heyday was in the 1960s, when segregationist Southern Democrats unsuccessfully filibustered federal civil rights legislation.

That’s the glorious history of the filibuster. It’s not sacred; it’s a perversion of our constitutional system.

A Senate rule put into federal law in 1974 says everything is subject to a filibuster except a narrowly defined category of budget items. Today Democrats and Republicans threaten to require 60 votes to advance almost anything of consequence. The Senate appears to have abolished the filibuster for approval of federal judges, but the 60-vote threshold remains for general legislative business. It’s making the nation ungovernable.

The filibuster indirectly blocked the initial Republican effort to repeal and replace Obamacare. When conservatives complained that the proposal did not go far enough and include measures such as interstate competition to bring down costs as promised to voters, House Republican leadership replied that anything more would trigger a filibuster in the Senate and doom the effort. Conservative voters delivered the House, the Senate, and the presidency to the Republican Party, but one of the main reforms promised to conservative voters has been stalled because the legislative scale tips too far in favor of the minority.

Republicans have regrouped for a second try on health care, but it’s hard to see how true reform can succeed in the Senate, where there are 52 Republicans. It will be tough enough to hold those votes, let alone recruit eight Democrats to overcome a filibuster.

Some senators are floating the argument that all facets of health care reform affect the budget, making health care reform a budget-related item not subject to the filibuster. There is talk of having Vice President Mike Pence take his constitutional position as president of the Senate for the debate on health care reform. If the bill (or part of it) is challenged as non-budget-related and therefore subject to a filibuster, and the Senate parliamentarian (an unelected staff person) agrees, Pence acting as president of the Senate could overrule the parliamentarian and prevent the bill from being filibustered.

Reports from Capitol Hill say some Republican senators are shaking their heads ‘no’ at that scenario.

Enough of these parliamentary gymnastics to accommodate an unconstitutional procedure. Do what should have been done a long time ago. Eradicate the filibuster and get on with governing the nation by simple majority rule according to the Constitution.

Republicans, don’t buckle when Democrats scream that you are invoking the “nuclear option” by eradicating the filibuster. It’s not the nuclear option. It’s the constitutional option.