Filibuster Flip‐​Flops — Again

Today’s question at “Politico Arena":

“Is the filibuster good or bad for America?”

My response:

The United States is a republic, not a majoritarian democracy. The Founders were rightly afraid of majoritarian tyranny, and they wrote a Constitution designed to thwart it. Everything about the Constitution -- enumerated powers, separation of powers, two bodies of Congress elected in different ways, the electoral college, the Bill of Rights -- is designed to protect liberty by restraining majorities. Furthermore, the Senate was intended to be slower and more deliberative. Washington said to Jefferson, "We put legislation in the senatorial saucer to cool it." The Founders didn't invent the filibuster, but it is a longstanding procedure that protects the minority from majority rule. It shouldn't be too easy to pass laws, and there's a good case for requiring more than 51 percent in any vote.

During the Bush years, when Republicans controlled the Senate, Democrats used the filibuster especially to block judicial nominations. Many conservatives and Republicans denounced the use of the filibuster. They complained about "tyranny by the minority" and said "all we are asking for is an up or down vote." I warned conservatives in 2005, "But those conservatives are being ahistorical, short-sighted, and unconservative. Judicial nominations are important, but so are our basic constitutional and governmental structures. Conservatives aren't simple majoritarians. They don't think a 'democratic vote' should trump every other consideration....Conservatives may believe that they can serve their partisan interests by ending filibusters for judicial nominations without affecting legislative filibusters. But it is naïve to think that having opened that door, they won't walk through it again when a much-wanted policy change is being blocked by a filibuster."

In another column that year, I noted, "Republicans who once extolled the virtues of divided power and the Senate's role in slowing down the rush to judgment now demand an end to delays in approving President Bush's judicial nominees. President Bush says the Democrats' 'obstructionist tactics are unprecedented, unfair, and unfaithful to the Senate's constitutional responsibility to vote on judicial nominees.' Democrats who now wax eloquent about a 'rubber stamp of dictatorship' replacing 'the rights to dissent, to unlimited debate and to freedom of speech' in the Senate not too long ago sought to eliminate the filibuster altogether."

I noted various liberal politicos and journalists who appeared to have flip-flopped on the legitimacy of the filibuster, from Sen. Hillary Clinton to the New York Times editorial page. And my old friend E. J. Dionne, who "groused about the 'anti-majoritarian filibuster rules' that were preventing needed action in 1998 but warned in 2005 that ending the filibuster would be 'a radical departure' that 'would be disastrous for minority rights.'" Now, I regret to note, the Democrats are back where they belong, in control of the Senate, the Republicans are once again the obstructionist minority, and E. J. is again denouncing the filibuster: "In a normal democracy, such majorities would work their will, a law would pass, and champagne corks would pop."

In a democracy, maybe. But not in a constitutional republic. As I wrote back in 2005, "American constitutional government means neither majoritarianism in Congress nor acquiescence to the executive." And of course, there's a question about what ought to happen if we were indeed a "normal democracy." A majority of the Senate wants to pass this bill. But a majority of the public opposes it. Is it "democratic" for representatives to defy the majority of their constituents?

If the filibuster allows the public to find out more about a proposed bill and to make its views known, then it is serving a useful purpose. If it sometimes blocks a bill, then it is also serving a useful purpose. But there aren't many people in Washington who stick to the same position no matter which party is in power. That's a good reason to have constitutional and procedural rules that last longer than temporary majorities.