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Monday, November 26, 2012

The Filibuster: States' Rights or a Partisan Ploy?

Before 1917, senators could filibuster only by talking continuously on the U.S. Senate floor. There was no mechanism to stop them. Such filibusters were rare until entering World War I was debated. In 1917, the Senate passed its first “cloture” rule, whereby two-thirds of the Senate could cut off debate and force a final vote. Between that year and 1971, no two-year session of Congress had more than 10 such votes. Even so, in 1971 the rules were changed to allow other legislation to be taken up during a filibuster—relieving a senator of having to continuously talk to maintain one. Making it easier to filibuster quickly led to the predictable result of more filibusters. In the 93rd Congress (1973-74), the number of cloture motions jumped to 31, from an average in the 1917-1971 period of two per Congressional session. In 1975, the number of votes needed to stop a filibuster was lowered from 67 to 60. However, this change did not curtail the use of the device, as it is rare for a party to control 60 votes out of 100 in the U.S. Senate. By 2010, the average number of cloture motions per two-year session had risen to 129, which suggests that the filibuster had become more typical in how senate business was to be conducted. In effect, legislation and even executive business, such as confirming presidential nominations, needed a supermajority (60 out of 100) in the upper chamber of Congress.

It might seem obvious to some that the filibuster should be expunged forthwith from the rules of the U.S. Senate. However, the matter is more complicated than that. Others with a historical sense steeped in knowledge of the U.S. Constitutional Convention might hold such an easy answer up by pointing to the “checks and balances” in the U.S. Senate being different than the U.S. House of Representatives, which does not have the filibuster and thus the majority party can more easily pass its agenda into law. The historically-minded individual could also point to the role of the U.S. Senate (as distinct from the senates of the states!) in providing the state governments with a direct voice at the federal level so as to thwart encroachments on their turf by the federal government. More abstractly, the U.S. Senate “represents” the semi- and residual-sovereignties of the states in contradistinction to the limited sovereignty of the U.S. Government in Washington, D.C.

Therefore, whether the filibuster is used as a defense of the state governments against further encroachment by the U.S. Government or a partisan ploy is a matter of great importance. Put more in terms of political theory, the decisive question is whether the U.S. Senate still (or had ever!) operated under the international principles wherein polities rather than citizens are represented and each government member has the same suffrage in the body as all the others. That is, do the state governments use the filibuster to protect their governmental sovereignty from being taken by the feds, or is the filibuster (and has it always been) a partisan ploy used by the minority party to thwart the majority from being able to exercise majority rule, which is legitimate in a republic.  Put still another way, does the filibuster play a role in the U.S. federal system being one of semi-sovereign republics within an “extended republic,” or is the device simply a legislative mechanism in a national legislature?  

There is reason to conclude that the filibuster is not used by state governments to protect their constitutional interests. Unlike in the E.U., where the state governments represent themselves directly in the European Council by means of the presidents or prime ministers (i.e., governors) and other ministers actually attending, the U.S. Senate relied from 1789 to 1913 on delegates appointed by the state governments to represent those governments. In 1913, the senators became subject to popular suffrage (i.e., elected by the particular republic’s electorate). Whereas a delegate and especially a directly-elected senator can develop an institutional interest in increasing the power of the Congress even at the expense of the state governments, the head of a member state’s government meeting with other such heads in the European Council is more likely to retain an interest in protecting the reserved and residual sovereignty enjoyed by his or her state’s government. We can predict from this comparison not only the expansion of the powers of Congress at the expense of the state governments, but also the use of the filibuster for partisan rather than constitutional purposes. In other words, we can expect that what goes on in the U.S. Senate has more to do with “political games” going on there than on protecting the sovereignty of the several states at the federal level. Constitutionally, this is a decisive shift, for the direct involvement of the state governments in the federal legislative machinery was held by most delegates at the convention to be crucial to preventing political consolidation by the federal government at the expense of federalism itself, including its checks and balances that preclude tyranny by a governmental body or office-holder. Sadly, this point has been lost amid the rather ahistoric-minded society in America, and the Congress is thus able to act like a state legislature.

This brings us to another concern of those who are cautious in ending the filibuster. They claim, correctly, that a U.S. Senate without the threat of a supermajority being required to pass a bill or confirm a nominee would be duplicative of the U.S. House. If so, there would be less “checks and balances” between the two chambers as they would be more likely to rubber-stamp each other’s work. Both in what the respective chambers represent (i.e., citizens and republics, respectively) and how the chambers operate, nasty side-effects from either the represented or the operations can be checked only if the other chamber is different in the particular respect. Bringing the U.S. Senate closer to the U.S. House in terms of operations reduces the chance that weaknesses in them would be checked or corrected by the other body in the legislative process.

Detractors of the filibuster would doubtless counter that the device thwarts majority rule, which is perfectly legitimate in a republic. They might concur that were the device used by state governments owing to their retained sovereignty, the mechanism would be in line with the international principles that are at the core of the U.S. Senate’s design. Representing governments is very different than representing citizens. The detractors may argue that the convention’s delegates put so many means to thwart legislation into the structure or processes of the U.S. Government as a check on that government gaining too much power over the governments of the states, and that now that Congress has that power it would be counterproductive to impede legislation by the filibuster (i.e., there are already enough means for factions to squash proposed legislation). This valid point is really to say that we ought not to pretend that the two systems of government in the American federal system—that of the states and that of the Union—are in any fashion in balance in terms of power. The shift to a near-consolidated system should not be obstructed by artifacts of an earlier or even just intended system. Put another way, has the U.S. Senate ever really served the interests of the state governments in terms of thwarting encroachments by the Congress or the President? If not, why let a devise geared in principle to this function thwart Senate’s business? If the international principles really no longer apply, why thwart majority rule? But then would the U.S. Senate function essentially like the U.S. House? As both the representatives and senators are elected, would the only difference between the two chambers be the size (in most cases!) of the district? How much of a check lies in that? Congress would be like a state legislature (where the upper chambers are much like the lower ones).

Indeed, the filibuster in its actual use is often merely a partisan ploy unrelated to the turf of the state governments. For example, Republican senators used the filibuster to hold up Chuck Hagel’s nomination as Secretary of Defense in part due to concerns about his ability, but also to get additional information on him (and from him) which may have simply been a delaying tactic. Even more problematically, the filibuster was also being used as leverage to get the White House to hand over more information on the September 2012 attack against a U.S. diplomatic mission in Benghazi, Libya, in which the U.S. ambassador and three other Americans were killed. Hagel had no role in the administration’s response to the attack.

In other words, the filibuster had wandered far from its moorings in international law as a privilege of government sovereignty. The device had become a mere partisan ploy serving political games between the two parties. For this reason, I believe the devise should be retired. But then the Senate could operate essentially like the House of Representatives, reducing the checks and balances between them and leaving the state governments without any real means of protecting what sovereignty they still have, operationally speaking. Rather than throw in the towel to consolidation in a “one size fits all” answer, federalism is still possible, and indeed advisable, given the empire-scale of these United States. I submit, therefore, that ending the filibuster does not go far enough. As usual, the public debate is too narrow, in that it assumes the existence of the U.S. Senate virtually as it is, focusing only on its filibuster. Such narrowness in the very contours of public discourse, by the way, is precisely why I founded the Worden Report.

Perhaps an American Council of Governors should be added to the U.S. legislative machinery so a majority of the heads of states of the member-states could veto federal legislation unfavorable to the interests of their respective governments. One might ask, why even have a U.S. Senate if it is not sufficiently distinct from the U.S. House? Perhaps the Senate should be replaced by an American Council of Governors, which would be qualitatively different from the U.S. House, just as the European Council is qualitatively different from the European Parliament. Indeed, the European Council is in American terms a council of governors, while the European Parliament is a House of Representatives in that the members are elected by E.U. citizens. Put another way, the two E.U. legislative chambers provide a glimpse of what the American founders had intended—as well as how far the American system has drifted from its own moorings. Why not use the E.U. legislative design as a way back home? In focusing on the filibuster, I fear we are merely improving the layout of deck chairs—a nice project but hardly sufficient to steer such a large ship of state. In other words, our rudder is too small, or perhaps our hands can no longer reach far enough. We need big hands. Big thinkers. Big ideas. And the will, the political will, which is no small feat in an empire of fifty republics even if it behaves as if it were a state.

Sources:

Jonathan Weisman, “The Senate’s Long Slide to Gridlock,” The New York Times, November 26, 2012.

Darlene Superville, “Chuck Hagel Vote Should Go On, Republican Opponents Say,” The Huffington Post, February 18, 2013.