Why conservatives should defend the senate filibuster

Bill Wichterman Contributor
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Senate Democrats are laying the groundwork for an assault on the filibuster, the means of unlimited debate that can only be shut off with a super-majority vote of 60 senators.

Senator Chuck Schumer, who may become the next Democratic Leader, has been holding a series of hearings examining ways to undo the “straightjacket” of the filibuster. It is unclear whether these hearings are principally a way to deflect blame onto Republicans for Democrats’ dismal poll ratings or whether they are a serious attempt to further remake the Senate to be more like the House of Representatives.  Or perhaps they are both.

But conservatives would do well to take the threat seriously.

The filibuster is fully consistent with the Framers’ intent to hobble swift legislative action, though the original Senate did not include the filibuster.  In fact, there was no mechanism to shut off debate until 1917, when a change was implemented to allow two-thirds of those present and voting to stop a filibuster.  The last change to the filibuster rule was in 1975, when the Senate reduced the cloture requirement to three-fifths of all Senators.

The filibuster is part and parcel of the role the Founders intended the Senate to play.  There is a broadly accepted fiction that the sole reason the Founders created the Senate was to accommodate the concerns of smaller states.  That played a part, but the Senate serves a more important function.

The story goes that when Thomas Jefferson, who had been in France during the Constitutional Convention, asked George Washington why they had created a Senate, Washington replied, “we pour our legislation into the Senatorial saucer to cool it.”

Without the Senate, America would have been one step closer to being a democracy, something the Founders loathed and feared.  James Madison, the Constitution’s principal drafter, derided democracies as “spectacles of turbulence and contention.”

The Founders rejected democracy because they did not believe in “vox populi vox dei” – that the voice of the people is the voice of God.  They believed that justice was not defined by a simple majority vote, but that justice exists transcendentally.  The role of government was to approximate justice.

The less democratic elements of the new Republic, including the Senate, the constitutional amendment process, the independent judiciary, the electoral college, etc., were among the checks and balances intended to curb the excesses of temporary passions and to ensure the more enduring good sense of the American people would prevail.  The filibuster, though not original to the Senate, is fully consistent with the inherent purpose the Founders intended the Senate to fulfill.

The Framers feared a nimble government would undermine American liberties – fears amply realized under President Barack Obama and Speaker Nancy Pelosi and just about every ruling party of the last 50 years, to greater or lesser extents.

The mainstream media prints story after story about Republicans mounting more filibusters in this Congress than ever before.  But they omit the fact Senate Majority Leader Harry Reid has used a procedural maneuver called “filling the amendment tree” to shut out the opportunity for Republicans to offer amendments, employing the maneuver more than any other Majority Leader in history and more than the previous four Majority Leaders combined.

It seems that this huge Democratic Senate Majority simply cannot endure having to vote on Republican ideas – no doubt out of fear of the electorate, which they so poorly reflect.  Republicans are using the only weapon in their arsenal to slow down Democrats’ Big Government agenda.

But assume tables were turned and a Democratic minority was thwarting a Senate Republican Majority’s agenda.  Even then Republicans would be unwise to erode the filibuster.  Conservatives should care about the long-term health of our nation.

Some cry “hypocrisy” for Senate Republicans’ plans in 2005 to use the “Nuclear Option” to stop the filibuster of President Bush’s judicial nominees.  But this is comparing apples and oranges.  Unlike the legislative filibuster that was first used in the 1830s, the filibuster of judicial nominees is historically unprecedented.  Prior to 2003, no judicial nominee with clear majority support had ever been denied confirmation due to a filibuster.  Not one.  Abe Fortas’ nomination to Chief Justice was blocked via a filibuster in 1968, but the cloture vote on his nomination achieved just 45 votes – short of a simple majority.

Senate Republicans had planned to use the “nuclear option” — the same technique that then-Senate Majority Leader Robert Byrd employed four times to restrict minority rights.  This time, Republicans were ready to use it to restore Senate traditions, not up-end them.   (Full disclosure: I was intimately involved in that effort as Policy Advisor to Senate Majority Leader Bill Frist.)  The “Gang of 14,” comprised of seven Democrats and seven Republicans, ultimately thwarted the effort and released the blockade of many, but not all, of the filibustered judges.

The filibuster is a vital expression of the Founders’ design to thwart rash legislation.  Conservatives – and all Americans – should defend it as an important institution that can make us slow down and think carefully before we act.  It has proven frustrating many times to both parties, and it has no doubt been misused along the way.

But the filibuster deserves to be preserved for the good of the nation.

Bill Wichterman was Special Assistant to President George W. Bush, Policy Advisor to Senate Majority Leader Bill Frist, and Chief of Staff to Congressman Joe Pitts.