Editor’s note: This article first appeared at Forbes.com.
What would the Senate be like without the filibuster? It would be a more efficient body, but efficiency has never been a hallmark of democracy.
Reflecting on Senate Rule 22, the so-called cloture rule that allows for filibusters, former Senate parliamentarian Floyd M. Riddick dramatically stated its importance when he said, “Coming from the House to the Senate, it is like going from prison to freedom. . . . I’m talking about the freedom of time to develop what you are trying to get over. . . . I just can’t imagine debates in the Roman Senate ever being developed under the House procedures.”
What would America be like without the filibuster? That’s the vital question. William F. Hildenbrand, former secretary of the U.S. Senate, said the filibuster is “the one way a bad bill can be stopped. It is a way of calling public attention to a bill. . . . Without it, the . . . [minority] here would be steamrolled. If you ever take away the filibuster, I think the people would be the losers.”
Conservatives and liberals have benefited from the filibuster. Conservative Strom Thurmond of South Carolina talked for 24 hours and 18 minutes against the Civil Rights Act of 1957. Liberal Wayne Morse of Oregon talked for 22 hours and 26 minutes against the Tidelands oil bill of 1953. In the short run they appeared to thwart majority rule. But in the end the Senate passed and the public accepted changes on these controversial social and economic issues.
And more recently Texas Senator Ted Cruz’ filibuster of 21 hours and 19 minutes in opposition to Obamacare not only foreshadowed overwhelming popular opposition to the Affordable Care Act, but also demonstrated that Democrats should never have passed that legislation in the first place without Republican support.
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Just because the majority can impose its will does not mean that it should.
Assembly-line speed is not necessarily a virtue when applied to the resolution of serious social and economic problems. Persons obsessed with productivity often fail to recognize that the legislative process is designed not just to produce results but also to insure that the results are the best possible.
In a democracy issues are supposed to be thoroughly debated so that voters can make intelligent decisions based on the best data available. Research to get the facts, debate to determine the alternatives, and compromise to achieve agreement on issues require a good deal of time.
Senate Rule 22 is a rational way not only to maintain America’s legislative system, but also to enhance society’s acceptance of legislative decisions. By deliberating at length on legislation, the Senate performs the useful function of gradually educating and preparing people for change.
One has only to imagine what could have happened had there not been extensive debates about civil rights prior to the passage of the Civil Rights Act of 1964. Debate and deliberation help cushion the impact of change, and aid in stabilizing American society with its diversity of volatile interests.
In modifying Senate Rule 22 to allow a simple majority to confirm most presidential nominations, Democrats have opened the door to further modifications, namely allowing a simple majority to act on Supreme Court nominations and legislation.
But even the present modification poses two serious problems. First, it strengthens executive power at a time when Americans have grown weary of its excesses. Second, it enables the president to pursue a narrow ideological agenda in making his nominations.
To illustrate, the president can now nominate judges far to the left of the American mainstream, which will enable him to more easily secure judicial support for his policies in critical judicial tests, especially before America’s most important appellate court, the District of Columbia Court of Appeals.
President Obama and Senate Democrats have won, but America has lost.
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