Now that the “nuclear option” has been invoked, the Senate won’t have filibusters for executive branch appointments and judgeships below the Supreme Court.
It’s not surprising that some don’t like this step.
But it’s disappointing to see people claim that limiting the filibuster upends constitutional balances.
Some imply the filibuster is in the Constitution. It isn’t.
Today’s vote involved filibusters that could be ended with a 60% vote of the Senate. But 60% is not a figure that appears in the Constitution in describing the Senate’s powers. Two-thirds does, for ratifying treaties. But not 60%.
In fact, the founders discussed requiring supermajorities for most legislative votes and they rejected that idea.*
The filibuster is simply an internal rule, adopted by the Senate. The Constitution gives each legislative body the power to set its own rules.
Others, correctly, say that the Senate was meant to be a counterweight to the House, more measured and less affected by popular passions.
But then they imply that this counterweight is based in the Senate’s rules. That’s wrong, too.
The constitutional counterweight of the Senate wasn’t based on its internal rules.Rather, the Senate serves as a counterweight to the House due to elements that actually are in the Constitution.
One is its longer term of office, six years instead of just two. In discussing the Senate in Federalist 62, Madison pointed to the advantage of this longer term for providing stability.
He says that the Senate is needed to deal with the tendency for legislatures “to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions.”
To avoid those passions, a legislative body “ought to hold its authority by a tenure of considerable duration.”
A second key element is that this longer term is coupled with having just one-third of the Senate up for election at one time. In contrast, the entire House faces election at once.
Again, Madison explains this.
The mutability in the public councils arising from a rapid succession of new members, however qualified they may be, points out, in the strongest manner, the necessity of some stable institution in the government.
The Senate is more stable than the House since, at the most, only one-third could be changed at once.
Third, and perhaps most obvious, the Senate is a counterweight because both the House and Senate need to concur on legislation. Having a legislature with two houses breaks apart power
As Madison wrote in Federalist 51, there is a fundamental principle of constitutional design: “the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other.”
In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.
The filibuster wasn’t placed in the Constitution by the founders, or anyone. It wasn’t built into the Senate.
Instead, the Constitution’s provisions provided controls over popular passions, while enabling popular control.
And, recently the filibuster has gotten out of control.
Just take a look at this chart and see the huge increase in its use.
Having so many more filibusters is especially egregious because the filibuster does not go back to the founding, nor is part of our constitutional design.
Yes, the founders wanted to limit government. But they had also rejected the Articles of Confederation, which set up a system in which the national government was too feeble. They wanted a government that could govern, that could get things done. The filibuster has undermined governance.
The framers debated requiring a supermajority in Congress to pass anything. But they rejected that idea.
In Federalist 22, Alexander Hamilton savaged the idea of a supermajority Congress, writing that “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 junta, to the regular deliberations and decisions of a respectable majority.”
In Federalist 58, James Madison wasn’t much kinder to the concept. “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.”
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