On the evening of January 5th, Democrats stopped time.
Instead of adjourning the Senate at the end of its first day, they called a recess, freezing the clock. When business resumes on January 25th, it will technically still be day one of the new session.
They did this because they wanted extra time to eliminate the filibuster. Their plan requires adopting a new set of Senate rules. If this can be done at all, it must happen on the first day of the session, before the old rules kick in by default.
Whether their rules change maneuver is valid is an old debate. Both Republicans and Democrats have toyed with it when their party was in power. Less discussed is the strength of the underlying claim that the filibuster should be ended because it is undemocratic.
It is true that a filibuster can frustrate majority rule. It takes 60 votes to break one, so a determined minority can block a bill that has 51 supporters. However, the filibuster is not unique in this regard. There is a widely accepted analytical mechanism courts use which is similar in both operation and effect.
The reference is not to the general principle of judicial review, which allows judges to invalidate duly enacted laws. That is not a procedural rule that makes it harder to uphold legislation. It is merely the substantive result of our system of checks and balances; an early and inherent element of our constitutional structure.
Rather, I am referring to the courts’ methodology for evaluating Equal Protection challenges. If a law creates distinctions between groups a court wants to protect, it applies “heightened scrutiny.” This means that providing a completely rational justification for the challenged law is insufficient. Instead, the government will have to show, at a minimum, that the law is “substantially” related to achieving an “important” government interest.
To underscore the undemocratic power of this methodology, consider two examples of particular significance at a time of high unemployment and state budget crises.
In 1973, the Supreme Court struck down a New York law mandating that government job opportunities in the competitive civil service be reserved for citizens. The Court relied on a 1971 case in which it invalidated state laws restricting welfare benefits to citizens or long-time residents. The states argued it was logical to favor their “own citizens over aliens in the distribution of limited resources such as welfare benefits.” The Court insisted on applying heightened scrutiny, which required more: “A State’s desire to preserve limited welfare benefits for its own citizens is inadequate to justify making noncitizens ineligible for public assistance.”
In both cases it was the heightened scrutiny that doomed the law. Indeed, the Court reached the opposite result in an earlier case because it required only a rational explanation for excluding aliens.
At issue in that case was legislation barring employment of aliens on public works projects. The Court affirmed the lower court opinion, which had found the discrimination to be “not arbitrary.” It was rationally calculated to reserve the limited “resources of the state” for the benefit of members of the state. “Ungenerous and unwise such discrimination may be. It is not for that reason unlawful.”
Another early case demonstrates that “heightened scrutiny” is not inherently necessary to defend equal rights. In 1886, the Supreme Court invalidated a San Francisco ordinance requiring laundries to obtain safety permits. Not one Chinese-owned laundry was granted a permit, compared with 99% of laundries not Chinese-owned. The city could provide no rational explanation for the discrepancy, so the Court struck it down.
Thus, the filibuster and heightened scrutiny operate similarly. Both are procedures that frustrate majority will. The filibuster by raising the votes required for passage above a simple majority and “heightened scrutiny” by requiring special justifications to uphold a law beyond a mere rational explanation. In both cases, the additional hurdles are frequently difficult to surmount.
However, the filibuster has the stronger claim to history. Jurists trace “heightened scrutiny” to a footnote in the 1938 Carolene Products case. The filibuster has roots at least 100 years earlier in the Jackson presidency. Colorful examples abound in later Senate records including a celebrated 1908 incident where opponents of Senator Robert La Follette seemingly tried to break his filibuster of a currency bill by feeding him poisoned eggnog.
To the extent gridlock in Washington reflects a closely divided electorate, the filibuster may actually have a palliative effect on the sense of community. The need for a supermajority prevents either side from alienating the other by jerking the country too far in one direction merely because it narrowly prevailed in a particular election.
Eliminating the filibuster is like knocking the spires off a castle. With the distinctive feature gone, what is left is just another House.
Daniel Huff is Director of the Legal Project at the Middle East Forum and a former counsel to the Senate Judiciary Committee.
