Tag Archives: filibuster

Legislative Looting: The Filibuster and the Founders

Longtime Capitol Hill staffer, Richard Arenberg, has written an op-ed in Politico defending the filibuster.  Arenberg offers an historical justification that is as flawed as it is simplistic.  He writes:

The founding fathers greatly feared the “tyranny of the majority” – and they created the Senate to avoid what they deemed the rule of the mob.

The Senate was the result of the “great compromise” at the 1787 Constitutional Convention, which shaped the body to represent the states. Each state has two senators regardless of its population size – an idea so important to the framers that the Constitution in Article V requires that “no State, without its consent, shall be deprived of its equal suffrage in the Senate.”

On the former argument, Arenberg is paraphrasing from Federalist 10, a pamphlet written (we now know) by James Madison, in support of the Constitution.  However, Arenberg totally misrepresents the filibuster as solution to majority tyranny.  Madison’s argument does not mention legislative minorities at all, save for this: “If a faction consists of less than a majority, relief is supplied by the republican principle, which enables a majority to defeat its sinister views by regular vote.”

Madison writes more extensively about legislative rules in Federalist 58. Here, he discusses the Constitution’s quorum requirement – that only a simple majority of members of Congress need to be present to conduct business.  Madison observes:

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 government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority.

Madison admits that requiring a large portion of members of Congress to be physically present would make Congress more deliberative, but it creates a problem that is much worse: it would undermine energy in government.

Alexander Hamilton, another contributor to the Federalist Papers, shared Madison’s fear.  In Federalist 22, Hamilton contends:

The necessity of unanimity in public bodies, or of something approaching towards it, has been formed upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of 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.

(If you think the use of the word junto seems extreme, consider the word filibuster.  It evolved from a Dutch word for piracy – a quite literal tyranny of the minority.)

The Constitution was drafted because the existing governmental framework, the Articles of Confederation, put the United States on the brink of collapse.  The Articles failed in no small part because of its requirement for a supermajority vote in Congress to pass any law.

The modern Congress has brought the country back, once again, to the brink of a government shutdown, and the wanton abuse of the filibuster also plays a significant role in this being the most “do-nothing Congress” in American history.

Moving to Arenberg’s second argument: the fact that equal representation in the Senate is (essentially) an unamendable clause in the Constitution makes it a really important part of the American democratic system.  What Arenberg fails to acknowledge is the immediate preceding clause in Article V, which is the only other part of the Constitution that was, at least, temporarily, unamendable.

For the first twenty years of this Constitution’s history, Congress could pass no law, and the country could pass no constitutional amendment that would regulate or abolish the international slave trade.

The Constitution is full of praiseworthy clauses, but it also contains at least one downright evil clause.  And this clause was considered so important to the functioning of American democracy, that it could not be changed for a generation.

Every senator who has ever defended the practice of filibustering has said it promotes deliberation and compromise.  Arenberg and co-author Robert Dove expand on this argument in their book, Defending the Filibuster: The Soul of the Senate, which discusses other parts of the Federalist Papers, but makes no mention these crucial Madisonian or Hamiltonian arguments.

As I have argued elsewhere, many more Founders considered the advantages of supermajority votes and rules allowing extended debate in Congress, and, ultimately, rejected them.

Designing a lasting system of democratic government required careful planning.  Thus, the debate over filibuster reform deserves more than platitudes from a middle school civics curriculum.

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William Blake Cited in the Washington Post

You can’t blame the Framers for the filibuster

By Ezra Klein

Thumbnail image for breakingthefilibuster.jpg

If Democrats really do try to reform the filibuster Jan. 5, we’re likely to hear a lot about how the Founding Fathers designed the Senate with the filibuster in mind, or how the filibuster is written into the Constitution. Sen. Judd Gregg gave a pretty comprehensive version of this argument last March. Sen. Chris Dodd gave another version of it in November.

But whatever you think of the filibuster, this argument isn’t true. The delaying tactic — which has morphed into a supermajority requirement that underpins the everyday workings of the modern Senate — is not in the Constitution. It wasn’t envisioned by the Founding Fathers. Quite the opposite, actually.

As William Blake shows, the Founders would have been horrified by the filibuster. The Constitution was, in part, a reaction to the paralysis of supermajority requirements. Its predecessor, the Articles of Confederation, required two-thirds of the states to agree before the government could declare war, coin money, enter treaties, or spend or borrow funds. That rendered the government barely able to function. James Madison, in ‘Federalist 58,’ went at the supermajority directly:

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 government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority.

The Constitution itself was very specific on the moments when the Senate should require more than a simple majority: impeachment of a president, expulsion of a member or overriding a veto. If the Framers had wanted a constant supermajority requirement, they would have mentioned it.

As for the old story where George Washington pedantically explains to Thomas Jefferson that the Senate is meant to do for legislation what the saucer does for coffee (“cool it”), the Senate was designed with important differences than the House: The Senate is smaller than the House, it represents states rather than people, and only a third of the body is up for reelection at any given time. Elections come every six years, and the Constitution originally charged state legislatures, rather than voters, with voting senators in and out of office. Senators themselves have to be older than members of the House, and have to have been citizens for longer. Again, the Framers were pretty specific on the differences between the House and the Senate, and the filibuster didn’t make their list. In fact, it was the House where a filibuster-like practice originally reigned before the body changed its rules.

This leads to an obvious question: If it’s not in the Constitution, and it wasn’t built into the Senate from the start, where does the filibuster come from? Well, it was an accident.

All that said, I want to be clear: If, while filming National Treasure 3, Nicholas Cage unexpectedly discovers that the Liberty Bell is encircled by a secret message in which every man, woman and child who was alive to see the Constitution ratified registered their implacable and eternal opposition to the filibuster, that’s not a good argument against the filibuster. The Framers did a remarkable job in 1788, but they were men (and only men, and only white men, and only rich white men, and so on), not gods, and they did not have the information or experience that we have today. We were right to amend the Constitution to allow the direct election of senators, and perhaps the 60-vote requirement is a positive addition to the Senate, if an accidental and recent one.

But insofar as these appeals to revolutionary authority are an important part of contemporary political discourse and routinely get misused when it comes to the rules of the Senate, it’s worth setting the record straight. The Constitution didn’t create the filibuster. The Framers didn’t intend it. The modern filibuster was created in the 1970s, when cloture was moved from two-thirds of the Senate to three-fifths and dual-tracking was implemented, and it only became ubiquitous in the last 20 years, as you can see from the graph atop this post. We may think the filibuster is good or we may think it’s bad, but either way, it’s ours.

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