Filibusters are not sacrosanct, but they're useful

Jacob Sullum
Posted: May 06, 2005 12:00 AM

Critics of the Senate filibuster complain that it's undemocratic and obstructive. These are its two most appealing features. Our system of government is undemocratic and obstructive in many ways, including the Constitution's enumeration of congressional powers, the rights it explicitly protects, the types of laws it explicitly prohibits, and the bicameral legislature it created, with one house based on proportional representation, and the other giving equal voices to California and Wyoming. The two houses must agree on legislation, which has to be authorized by the Constitution and approved by the president, unless Congress can muster a two-thirds majority to overcome his veto.
The Constitution is undemocratic and obstructive for a good reason: to prevent tyranny by the majority. The Framers recognized that democracy is not the ultimate value but a means to preserve liberty by making government accountable. Pure democracy can be as great a threat to liberty as pure autocracy.

 Still, given the Constitution's built-in obstacles to getting things done, why do we need one more way to jam up the works, a rule that requires 60 votes to end debate and move to a vote? If Congress respected its constitutional limits, we probably wouldn't. But since members of Congress feel free to legislate on any subject that crosses their minds, with little restraint by the courts, it's nice to have an extra monkey wrench.

 Gun Owners of America certainly thinks so. Calling the filibuster "our greatest weapon for killing gun control," it warns that when "anti-gun Democrats get back into power and they want to push comprehensive gun bans, gun owners will be the ones using the filibuster."

 There's nothing sacrosanct about the filibuster, which the Senate has repeatedly tinkered with during the last two centuries, most recently in 1975. But given the way it works -- to prevent legislation, never to facilitate it -- I'm inclined to think it accomplishes more good than harm. Just ask yourself: Do you like most of what Congress does?

 Here's my problem: Senate Republicans are not talking about doing away with filibusters entirely. They say they only want to prevent filibusters from being used to block judicial nominations, and the judicial nominations they have in mind hold the promise of reining in government.

  President Bush has said his favorite Supreme Court justices are Antonin Scalia and Clarence Thomas, a harbinger that terrifies his opponents but gives me hope. Scalia and Thomas are the justices who are most inclined to insist that Congress stick to its enumerated powers, and they have often (although not always) defended the rights of vulnerable minorities, including advertisers of politically incorrect products, operators of controversial websites, owners of regulated land, and (in Scalia's case) citizens classified as "enemy combatants."

 If Bush's judicial nominees are similar to Scalia and Thomas, getting them confirmed may be worth forswearing the filibuster as a weapon against less desirable nominees by Democratic presidents. On balance, it may lead to a less intrusive, more restrained federal government -- assuming the legislative filibuster can be preserved.

 Notwithstanding the lofty rhetoric on both sides of the controversy over judicial filibusters, it comes down to a prediction about which rules will give your team an advantage. I can't bring myself to root for the Democrats or the Republicans, although I think the latter's judicial nominees are more likely to enforce constitutional limits that have been neglected for too long.

 Any inclination I might have had to take sides was dampened by the bipartisan insincerity of the filibuster debate, which has ascended into meta-hypocrisy: The Republicans have no business accusing the Democrats of saying one thing and doing another because they are just as guilty of the same sin, and vice versa.

 The Republicans pioneered the use of filibusters against judicial nominees with their successful 1968 effort to stop Abe Fortas from becoming chief justice of the Supreme Court, which they now say doesn't really count because Fortas might not have been confirmed even if he had received a vote. Obviously, his opponents thought there was a good chance he would be, or they wouldn't have bothered with the filibuster.

 The Democrats, unable to cite a single real-life filibuster of which they approved before they started filibustering Bush's circuit court picks, have turned in desperation to the Frank Capra movie "Mr. Smith Goes to Washington," featured in a People for the American Way commercial. What's next? "Rosemary's Baby" as an argument for abortion rights?