By Charles C. W. Cooke
Thursday, February 29, 2024
I am, at this early stage, wholly agnostic on the Johns. Whether the next leader of the Senate’s
Republicans ought to be John Barrasso, John Thune, or John Cornyn will be
answered in due course, but, whatever happens, the transition will likely
represent a downgrade. Mitch McConnell probably stayed too long in his role,
but, as sins go, that one is relatively minor. McConnell was a giant, and his
achievements will be made clearer by the passage of time. John, whoever you
are, you’ll have your work cut out for you.
What should the Republicans look for when picking
McConnell’s replacement? I have some minimum standards to propose: The right
candidate will understand that the Senate is not the House; he will grasp that,
by design, the body exists to represent the states in Washington, D.C.; and he
will take the role that it plays within the appointments process seriously.
Which, in practice, means that, for an aspirant to meet the minimum threshold
of eligibility, he must issue a solemn vow to preserve the filibuster.
The filibuster gets a bad rap in the press these days,
but this is almost entirely because the press is civically illiterate and does
not know why either the federal government or the Senate exists in the first
instance. If the United States were a unitary nation like the United Kingdom —
with a national government, and nothing else besides — it would, indeed, be a
problem for the second chamber of its Congress to be designed like the Senate.
Were such a system to obtain, then all the laws that bound
Americans would, by definition, have to be passed in Washington, D.C. And
if all the laws that bound Americans were passed in
Washington, D.C., then it would be irrational to have a legislature that was
based on anything more complicated than simple majority rule.
But that’s not, in fact, how the United States works —
not even close. Within our constitutional system, the primary location of
lawmaking is the states, with the federal government having been
empowered to do only the handful of things that affect the entire nation. This
being so, it is absolutely appropriate for America to have a hybrid legislature
that requires both a majority based on population (the House) and a
majority based on the acquiescence of the states (the Senate), and that thus
allows the federal government to act only in such cases as it is able to secure
a truly broad-based assent. Critics of the Senate often describe the body as
“undemocratic,” but a superior word is “localist.” The existence of the Senate
does nothing to prevent California from passing whatever laws it wishes within
its own borders; it does, by contrast, limit what California can do to bind the
people of Wyoming.
The filibuster, it is true, is not a mandatory part of
that system. But it is a good one nevertheless — especially given
that, over time, the federal government has managed to escape many of the
limitations that are imposed on it by the Constitution, and that Washington,
D.C., has thus become more likely, rather than less likely, to ride roughshod
over the democratic choices of the states. Those who advocate abolishing the
Senate like to point out, correctly, that the primary author of the
Constitution, James Madison, was uneasy with the concept of the upper chamber
on the grounds that it might become unacceptably counter-majoritarian. What
they invariably miss is that the Constitution that Madison wrote accorded very
few powers to the federal government of which the Senate was to become a part.
Had Madison known that Congress would eventually insinuate itself into every
last cranny of American life, he would almost certainly have wished to
add other prophylactic measures to ensure that the states
could fight back against egregious encroachment.
The filibuster is one such measure. In our divided era,
the filibuster acts as the last great preservative of the federal system, and
as a bulwark against the instability of see-sawing national change. That
Florida remains as different from New York as it does is in large part the
product of the filibuster. That the United States has not adopted many of the
sclerotic one-size-fits-all social programs that are de rigueur in
Europe is the product of the filibuster, too. Its enemies on both sides of the
political aisle tend to portray the tool as the cause of our cultural dismay
and of the congressional “stagnation” that leaves it in place. Precisely the
opposite is true. In this time of constitutional slippage, the filibuster has
become our most potent guardian of political diversity, local control, and
democratic pluralism. Any Republican who wishes to lead the Senate must promise
to keep it in place at all costs.
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