a few words about the filibuster

by russell

Federalist 58 :

It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale.

"In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences.

Federalist 22 :

To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. ... The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.

Thoughtful debate is fine.  Insuring that the concerns of minority interests are heard and considered is fine.

The filibuster has become a mechanism for requiring a supermajority for any and every controversial issue.  It's not a Constitutional issue, it's a matter of Senate rules, and it wasn't even a regular matter of Senate practice until well into the 19th C.

I'm not in favor of change for its own sake, and I recognize that changes to established practice often cut more than one way.  All of that said, it's time to get federal governance back to something approaching a functional state.

If getting rid of the filibuster helps make that happen, I'm all for it.

Comments

[Nigel]

The filibuster is, i think, dead.
I won’t mourn it. Though I will always think fondly of James Stewart in Mr Smith Goes to Washington.

[wj]

You get the feeling that the Federalist Society hasn't read the Federalist Papers.

[Nigel]

I get the feeling that they attach little importance to them - but I’m pretty sure they’ll be able selectively to quote whatever bits might suit their ends.

[Nigel]

‘No one should be surprised that a Republican Senate majority would vote on a Republican president’s Supreme Court nomination, even during a presidential election year,’ Alexander said in a statement. ‘The Constitution gives senators the power to do it. The voters who elected them expect it.’

I think the same logic now applies to the filibuster, statehood for Puerto Rico and DC, and quite possibly an enlarged Supreme Court.

[cleek]

hear. hear.

end the ridiculous practice (and rid of us of an ugly silly word)

[McKinneyTexas]

We are in a perfect storm of hypocrisy and both sides are fairly dripping with it. You don't have to look far at all to find Dem Senators decrying any Repub effort to roll back filibuster when it was to Dem's advantage. Even prior to RBG's passing, Dem senators were airing ending the filibuster, which they have used to their advantage up until then.

Repubs are flipping on supreme court nominees and will have to end the filibuster to make that happen, thus doing the Dems' job for them if the senate flips.

So, fun times for everyone and everyone gets to be outraged and angry and threaten stuff.

Or, in a universe far, far away, someone might try a compromise: the Senate amends the filibuster rule to require 60 votes to change the rule, thus preserving it AND the Repubs stand down on nominating a SC justice AND the filibuster is extended to include SC nominees so that both parties have to play to the middle.

The filibuster has been around forever. It forces a certain amount of comity and compromise. Yes, it can frustrate a legislative agenda, and if you think your party will be in power forever, then sure, do away with it.

Or, each side can declare itself to be the sole possessor of all that is good, right and reasonable and see how that works out.

[cleek]

You don't have to look far at all to find Dem Senators decrying any Repub effort to roll back filibuster when it was to Dem's advantage. Even prior to RBG's passing, Dem senators were airing ending the filibuster, which they have used to their advantage up until then.

i wonder... do circumstances ever change?

[McKinneyTexas]

i wonder... do circumstances ever change?

Yes, all the time, and both sides can make that argument. That's exactly what hypocrites do: claim "changed circumstances" and screw the other side. If you think your side is pure, fine. I know plenty on the right who believe the same thing.

Either we have a consensus on at least some principles or the word loses its meaning.

I notice you don't quarrel with my criticism of Republicans.

[russell]

the Senate amends the filibuster rule to require 60 votes to change the rule, thus preserving it AND the Repubs stand down on nominating a SC justice AND the filibuster is extended to include SC nominees so that both parties have to play to the middle.

if any of that was on offer, we'd be having a different discussion.

Filibuster, no filibuster is a Senate rules change. What I'm primarily concerned about is the degree to which a party that represents a minority of the population can thwart the interests of the majority of the population.

I don't see that as sustainable.

The quotes in the OP are not specifically about the filibuster, it didn't exist at the time they were written. The quotes are about the dangers of minority interests obstructing the will of the majority.

We all understand that we don't want anybody's liberties to be trampled by the mob. That needs to apply to minoritarian mobs as well as majoritarian ones.

The days of compromise and comity appear to be behind us, at least for the moment. I'm just trying to figure out how the nation functions in that context.

[Nigel]

The filibuster has not been around forever.
It’s a frankly bizarre rule.

[wj]

What might be a useful first step is this. If there aren't votes to invoke cloture, insist on extended debate. Don't just drop the matter if you don't have 60 votes (a relatively recent innovation) -- make them show up and keep talking. If they stop, start the vote. Period.

No long recesses to go home. Even to campaign. Gotta keep talking. Or else.

There would stil be some filibusters, of course. But the habit of not even trying without 60 votes would be gone. And good riddance.

[cleek]

That's exactly what hypocrites do: claim "changed circumstances" and screw the other side.

this isn't the 1850s. the filibuster serves no beneficial purpose.

I notice you don't quarrel with my criticism of Republicans.

because Republicans are scum.

[cleek]

the filibuster is going to go and everybody knows it.

best to just rip that band-aid off now, while nothing substantial from the House is going to get through the Senate anyway, and get it over with.

new game: every time a "conservative" cries "hypocrisy", i donate to a Democrat.

that's $50 to Biden. i'll put your name on it McTx.

[bobbyp]

Either we have a consensus on at least some principles or the word loses its meaning.

So, how, exactly is this consensus to be reached? And how do we determine some kind of fair and reasonable status quo ante?

I have popcorn. Waiting.

[Nigel]

Didn’t someone recently say that you cannot re-establish consensus unilaterally ?

And why not point out to all those states’ rights fans that only 14 state legislatures have the filibuster.

[russell]

What might be a useful first step is this. If there aren't votes to invoke cloture, insist on extended debate.

This can be achieved by eliminating the two-track system.

I'd be fine with that. Filibuster if you like, but all Senate business comes to a halt while you talk.

As it stands now, there is no cost to the filibuster. It's just a way to send legislation off into the desert to die.

[McKinneyTexas]

new game: every time a "conservative" cries "hypocrisy", i donate to a Democrat.

That could get expensive.

[russell]

That could get expensive.

LOL.

Can't travel, no live music or shows to see, dining out is limited.

Might as well spend discretionary $$$ on throwing (R)'s the hell out.

:)

[cleek]

we sold my car (no need for two cars if we're both working from home). we spend nothing on gas. lunches at home are cheap. the only time we go out to eat is to pick up a pizza and bring it back.

we're saving lots of money.

might as well spend it on evicting the clowns who broke the mail!