In Defense of the Filibuster
There is a growing chorus of conservatives — especially members of the House of Representatives, but also presidential candidates and other conservative leaders — calling for the elimination of the Senate filibuster. Whether the issue is repealing Obamacare, defunding Planned Parenthood and sanctuary cities, stopping the Iran deal, or one of a dozen other things, the House’s work is being thwarted by this 19th-century mechanism requiring a supermajority of 60 votes for a bill to pass the "upper body."
In September, 57 House Republicans wrote to Senate Majority Leader Mitch McConnell, asking him to eliminate the filibuster for "some votes" because "in a democracy the majority should decide. The supermajority now required to advance legislation is 60 votes. . . . [This] is not serving our country well."
Conservatives know that President Obama would veto most conservative bills if they ever made it to his desk. But forcing a veto, they reason, would at least let Americans know who’s to blame. When a bill dies a quiet death at the hands of 41 Senate Democrats, it is easy for conservative voters to assume that Republicans aren’t keeping their campaign promises.
As a one-time House staffer, I totally get it. I, too, made a habit of throwing stones at the Senate for its filibustering ways.
But this issue is much more important than another House–Senate spat. It’s about what kind of government the Founders established — and whether we are going to subvert it for short-term gains.
The long-term damage that abandoning the filibuster would do to our form of government would be substantial. The Framers of the Constitution intentionally hobbled Congress. For the sake of preserving maximum freedom, they wanted to make it difficult to pass legislation. Consistent with that notion, the filibuster protects the rights of the minority and requires at least a minimum level of bipartisanship in legislating. (The passage of Obamacare on a strictly party-line basis was possible only because President Obama briefly had a rare supermajority — it is the only time in our history that a major entitlement program has been enacted on a party-line vote, and Obamacare will forever be controversial because of that.)
#share#It’s true that the filibuster was not part of the original Senate structure. It came about through internal Senate rules changes early in the 19th century and wasn’t exercised until 1837. Still, the filibuster is part and parcel of the role the Founders intended the Senate to play. There is a broadly accepted fiction that the sole reason the Founders created the Senate was to accommodate the concerns of smaller states. That played a part, but the Senate serves a more important function.
The story goes that when Thomas Jefferson, who had been in France during the Constitutional Convention, asked George Washington why they had created the Senate, Washington replied, "We pour our legislation into the senatorial saucer to cool it." Without the Senate, America would have been one step closer to being a democracy, and not the republic the Founders wanted. James Madison, the Constitution’s principal drafter, derided democracies as "spectacles of turbulence and contention."
The Founders rejected democracy because they did not believe in Vox populi vox Dei — the notion that the voice of the people is the voice of God. They believed that justice was not defined by a simple majority vote, but that it was more likely to be revealed by the functioning of a democratic republic. The role of government was to get as close as possible to justice.
The less democratic elements of the new republic, including the Senate, the constitutional-amendment process, the independent judiciary, and the Electoral College, were among the checks and balances intended to curb temporary passions and to ensure that the more enduring good sense of the American people would prevail.
Conservatives have benefited from the filibuster in the past — using it to stop measures such as the pro-union "card check" and so-called "paycheck fairness," and to preserve the Bush tax relief when the Democrats tried to rescind it — and we will likely benefit again if we at some point find ourselves in the minority. Yet that’s not the primary reason to defend the filibuster.
The Founders believed that our passions are not necessarily reliable guides. They believed in the primacy of reason and deliberation. To the extent that we jettison greater deliberation, like that which the filibuster forces upon the Senate, we are walking away from the Founders and embracing a fundamentally unconservative view of the world.
The filibuster makes us slow down and think carefully before we act. Each party at different points has found it frustrating, and it has no doubt been misused along the way. But the filibuster deserves to be maintained in order to safeguard the democratic republic.
— Bill Wichterman was special assistant to President George W. Bush, policy adviser to Senate Majority Leader Bill Frist, and chief of staff to Congressman Joe Pitts of Pennsylvania. He holds an M.A. in political theory.