Five myths about filibuster



Norman Ornstein, Emeritus Researcher at the American Enterprise Institute, is co-author of “One Nation After Trump: A Guide for the Perplexed, the Disillusioned, the Desperate and the Not-Yet Deported”.

Senate Majority Leader Chuck Schumer launched the challenge, saying he would change Senate rules by January 17 if Republicans continued to block the Freedom to Vote Act and the Freedom to Vote Act. advancement of John Lewis’s voting rights. Due to filibuster, none can pass without 60 votes in the Senate – and no Republican supports both bills, although all 50 Democrats do. Supporters of the status quo have their reasons, many of them caught up in myths about the history of the Constitution and the role of the Senate.

Myth # 1

Senate bills have always needed a qualified majority.

People often overestimate the root depth of the blockage. When the Senate voted in 2013 to invoke the “nuclear option” to approve presidential candidates, so-Sen. Lamar Alexander (R-Tenn.) Wrote in the Washington Post that getting around the filibuster was “the most dangerous restructuring of Senate rules since Thomas Jefferson wrote them.” More recently, Senator Joe Manchin (DW.Va.) defended filibuster in the Charleston Gazette-Mail by saying: preserve our fragile democracy.

That’s right – but filibuster was not one of those checks and balances. The Senate had no provision for a qualified majority on legislation for its first 17 years. Like the House, its rules allowed for a “motion for the preceding question,” where a majority could go directly to the vote. This provision was removed in 1806, when Vice President Aaron Burr cleaned up what he saw as redundant provisions in the cluttered Senate Rules. For decades after the change, the status quo largely prevailed – until the 1840s, when John C. Calhoun exploited the absence of the motion to block anti-slavery action by discussing at length on the ground, joined by allies. His opponents did not have the capacity to stop the speech. Starting in the 20th century, the rules changed several times, always to make it easier for the majority to overcome the obstruction and take action.

Myth # 2

The editors feared “the tyranny of the majority.”

Supporters of filibuster often argue that the framers of the constitution intended to obstruct simple majority decisions. In defense of filibuster James Huffman, a professor at Lewis & Clark Law School, wrote in The Hill that James Madison “would probably think this is a brilliant innovation to prevent the tyranny of the majority.” Republican Senate Leader Mitch McConnell (Ky.) Wrote in The New York Times in 2019 that filibuster is “at the heart of the order established by the Constitution,” citing Madison’s view that the Senate should work as an “extra obstacle” and “complicated control” over the house.

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But aside from explicit constitutional requirements for qualified majorities, such as the approval of treaties, drafters were quadruple for majority votes. Alexander Hamilton wrote in Federalist 22 that allowing minorities to override the majority would result in “tedious delays; ongoing negotiations and intrigues; despicable compromises of the public good. Walter Oleszek, a specialist in the Congressional Research Service, noted: “Overall, the Framers have generally favored decision-making by simple majority voting. This view is supported by the granting of a vote to the Vice-President (Article I, Section 3) in cases where Senators are “equally divided”. Majority vote.

Myth # 3

Systematic obstruction promotes moderation and cooperation.

In The Post, Sen. Kyrsten Sinema (D-Arizona) wrote last year: “Filing requires restraint. She is not alone in asserting that the rule has a salutary effect on the bipartisan relations of lawmakers: Thomas Jipping of the Heritage Foundation, for example, says that it “encourages consensus”.

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This may have been true in the distant past, but it hasn’t been so for a long time. The Senate changed the filibuster rule in 1975 from two-thirds of those present and voting to three-fifths of the Senate as a whole. The “show and vote” standard, by forcing senators to show up, places the burden on the minority; the absolute norm passed entirely the burden on the majority. On most issues, when it is clear that a closing vote (i.e. a vote to end debate) would fail, there is no debate, which would only take precious time. The minority can kill bills with little or no visible traces, and have no incentive for moderation or compromise. A good example: the House passed two bills last year requiring universal firearms background checks. Neither was even brought up in the Senate, as Republicans have made it clear that the measures will die of obstruction.

Myth # 4

Maintaining the filibuster now will preserve it in the future.

Some Democrats are reluctant to change the filibuster because they worry about what Republicans would do under the new rules if they regain a majority. “We have more to lose than to gain by ending the filibuster,” Sinema argued in his Post article. Manchin, also writing in The Post, said: “If the filibuster is removed or if budget reconciliation becomes the norm, a dangerous new precedent will be set for passing sweeping partisan legislation that changes the direction of our nation every time. that there is a change. in political control. The consequences will be profound – our nation may never see a stable government again. “

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The implication is that if Democrats bite the bullet and maintain the filibuster as it is, Republicans will exercise the same restraint when they win back the majority. But recent history offers no evidence that the GOP would be bound by tradition. During Obama’s presidency, Senator Pat Leahy, D-Vt., Then chairman of the Judiciary Committee, insisted on upholding the tradition of the “blue slip,” which allows senators to decide the fate of lower court judges. appointed by their states. But at the start of the Trump presidency, when a Democrat used tradition to block a candidate from his state, Sen. Charles Grassley, R-Iowa, the committee’s new chair, dropped him.

Then there is the Supreme Court. McConnell quickly changed the filibuster rule to allow majority action against Trump’s Supreme Court candidates. Then, after refusing to hold a hearing on Barack Obama’s candidate 11 months before the 2016 presidential election, claiming that tradition required the election winner to choose a new justice, he abandoned that norm and organized a vote to confirm Amy Coney Barrett eight days before the 2020 election.

Myth # 5

A rule change would make the Senate just like the House.

Some believe that without systematic obstruction, the Senate would lose its essential character. This is what Brown University professor Rich Arenberg argued in The Post in 2019, that “leaving most questions to a simple majority vote would make the Senate very similar to the House of Representatives” . Responding to the rule change proposed by Democrats at a press conference on Monday, McConnell said, “Make no mistake, this is real radicalism. They want to turn the Senate into a Chamber. They want to facilitate fundamental change in the country. “

It is true that the Senate was designed to be very different from the House: it represents states, gives those states an equal footing, and gives senators six-year terms. The Senate, however, does not derive its character from the demands of a qualified majority. After all, the filibuster didn’t even exist when the body was founded. Democrats have proposed, for example, requiring senators to actually speak, or reversing the norm so that the Senate would need 41 votes to continue debate rather than 60 to end it. These filibuster reforms would not weaken the Senate, but restore it to its rightful place in our political system.

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