Washington Post columnist Matt Miller opines believes that the first order of business for the new Congress in 2013 is for the Senate to change its rules and eliminate the filibuster. This has been proposed a number of times in the past to no avail. It’s no surprise that change attempts have failed; it’s never been in most Senators’ self-interest to change the rule.
Nevertheless, the filibuster, or more correctly, the requirement of a supermajority of three-fifths to end debate on a bill in the Senate, should be retained. Why? Because it is an important veto point to guard against improvident legislation. The sacred shibboleth of “majority rule” often obscures that a democratic majority can be just as tyrannical as a monarchy or dictatorship. Recall what a “majority” really is – 51% plus 1. In other words, with genuine majority rule, a law can be imposed unwillingly on essentially one-half of the country. That may be “democracy” but it is not liberty. The framers considered a supermajority requirement, but ultimately rejected it because the rest of the structure was deemed sufficient to protect against a tyrannical majority. Doubtless that delegates from the most important states – Hamilton of New York and Madison of Virginia – argued against it, for varying reasons, was par to the reason for rejection of a supermajority except in a few cases.
That, of course was before the 16th and 17th Amendments, which gave Congress an essentially unlimited taxing power, which it had not previous had, and direct election of Senators, which made the Senate as much subject to transient public passions as the House. The supporters of doing away with the filibuster are mainly, but not exclusively, on the left. They should be aware of Oprah Winfrey’s favorite quote concerning being careful of what one asks for. If the filibuster did not exist, it’s entirely possible that the ACA would have been repealed, to some degree anyway, or at least the President would have been forced to veto it.
It has also been argued that the Senate, because each state, regardless of population, gets two Senators, is undemocratic. But the premise of the alleged disproportionate representation is that the states are just that. They are not provinces or subdivisions of the nation. That is the nature of a federal system. The problem is that the unlimited taxing power given to Congress by the 16th Amendment has allowed the federal government to intrude in policy issues that were originally deemed to be the province of the states. This has been done in the name of “regulating” interstate commerce, no matter how attenuated the effect, and by conditioning federal funds on compliance with what Congress deems to be worthy of support. The solution is not to erase state lines, but to allow states, say, like New Jersey and New York whose residents undoubtably have more in common with each other than they do with those of Texas or Montana, to make policies consistent with their residents’ wishes.
A further observation: Mr. Miller recalls that the filibuster was used to thwart civil rights legislation in the past. True enough, but because a rule or practice can be misused is no reason for getting rid of it if it has beneficial utility. Anyway, the civil rights filibusters were busted when the national consensus was reached that the legislation was necessary and desirable. Prior to the post World War II era, whether right or wrong, there was not such a national consensus.
See Miller’s column here.