By Kevin D. Williamson
Sunday, July 05, 2020
The Democrats are feeling cocky about their chances in
November, not only of seeing off Donald J. Trump to whatever awaits him after
the presidency but also of entering 2021 with control of both houses of
Congress. That means there is a renewed effort at hand to get rid of the
filibuster.
The most important legislative reality for Democrats is
that majorities do not last forever, but entitlements do. That’s the lesson of
the grievously misnamed Affordable Care Act: If you are willing to take a
kamikaze run at the issue, you can dig in deep enough in two years that it will
take the opposition 20 years to undo what you have done, if it can be dug out
at all. Here is something that Democrats under Barack Obama could boast of that
Republicans under Donald Trump cannot: They were committed enough to their one
big issue that they were willing to trade the majority for the bill. Commitment
to an error is a very limited kind of virtue, but there is something to be said
for the follow-through.
If the Democrats enjoy a trifecta in November, expect a hard
push for aggressive new income-redistribution schemes, probably linked to
punitive (which is not to say effective) new environmental regulations, and, on
top of that, a court-packing scheme that would convert the federal judiciary
into an engine of left-wing policy — permanent, unelected, and unaccountable.
The filibuster has many critics on the right, and they
are going to miss it when it is gone.
The original constitutional architecture of these United
States was a masterpiece of grace and balance. The framers faced the same
problem that has faced many republics in the past: balancing the need for
widespread democratic access to political power, which helps to confer
legitimacy, with the need for more narrow administration that frustrates and
defeats the will of the people when the people have gone mad, as they do from
time to time. What they came up with was a mix of democratic and
anti-democratic institutions: in the legislative branch, a popularly elected
House that serves as the accelerator and an appointed, quasi-aristocratic
Senate that serves as the brakes; in the executive, a president who cannot
appropriate funds or commit the nation to a treaty but who can veto a piece of
legislation, requiring a supermajority to override him — a president who in
most situations can say “No” more authoritatively than he can say “Yes”; in the
judiciary, a constitution of enumerated powers fortified by a bill of rights
that sets core liberal principles beyond the reach of mere majoritarianism.
What this produced was a democracy of “one man, one vote” on a short leash.
The filibuster is not a constitutional provision — it is
a creation of the Senate, a rule the upper chamber has set for itself. The
principle behind the filibuster is the principle of unlimited debate, the
belief that any senator has the right to extend the discussion of any issue to
whatever point he deems necessary. That principle enabled a procedural maneuver
we now call the filibuster, in which a senator kept speaking about an issue not
in order to advance the debate but to prevent a vote. (A filibuster is a
pirate, and a legislative filibuster was taken to be a kind of legislative
hijacking.) On the advice of President Woodrow Wilson, late of Princeton, the
Senate adopted a new rule that allowed senators to cut off debate with a
supermajority. The current cutoff point is 60 votes.
Senators are no longer always expected to actually speak
for hours on end when they engage in a filibuster, though many of them do:
Senator Rand Paul, a critic of domestic surveillance measures and
national-security excesses, spent 13 hours blocking the confirmation of John
Brennan as CIA director. (Ted Cruz had earlier subjected the Senate to 21 hours
of Green Eggs and Ham and other readings. Senator Paul read his colleagues some
much less entertaining magazine columns.) But rather than a marathon, the
modern filibuster is a kind of trump card a senator can throw on the table to
require a 60-vote majority to advance any piece of legislation or the approval
of an appointment requiring Senate confirmation.
A filibuster is like any other tool that can be use
responsibly or irresponsibly. Such instruments do not usually create new
political vices but only magnify existing ones. In the minds of many older
Americans, the filibuster is very closely associated with Democrat-led attempts
to thwart civil-rights legislation: The longest filibuster in our history was
Senator Strom Thurmond’s infamous stand, lasting 24 hours and 18 minutes,
against a civil-rights bill — the Republican bill passed in 1957 under Dwight
Eisenhower, not the more famous legislation of 1964. Sometimes, filibusters are
used in the face of momentous legislation, and, sometimes, they are used for
picayune purposes.
The problem with the filibuster is the problem that
inhibits Congress especially and Washington more generally in many obvious and
subtle ways: procedural maximalism. In our current adolescent political
culture, most political actors do not have the prudence or moral sophistication
to know when to press a technical advantage to its limit and when to relent. It
was for this reason that the Democrats’ impeachment of President Trump had so
little real moral effect on the American people — Trump’s impeachment was a
foregone conclusion simply because the Democrats had enough votes to impeach
him and nothing to hold them back but the good judgment and patriotism of Nancy
Pelosi, which do not amount to much. The circuses around our Supreme Court
nominations amount to much the same thing: Never mind that these dishonest
spectacles undermine the very institutions with which our elected officials are
entrusted and that they make effective governance all but impossible: If it can
be done, it will be done.
The filibuster is useful, because it is useful in a democracy
to be able to say “No” to the people and to their duly elected representatives.
That is why we have a First Amendment, a Second Amendment, and the rest of the
Bill of Rights: Nancy Pelosi and Donald Trump cannot be entrusted with
fundamental liberties, and neither can we, the jackasses who entrusted them
with power. The Senate, especially, is supposed to slow things down, to
suffocate democratic passions, and to make strait the gate and narrow the way
for destructive popular legislation. The more the Senate comes to resemble the
House, the less useful it is. The Senate’s distinctiveness serves practical
rather than aesthetic functions.
Democrats looking to eliminate the filibuster in 2021
should keep in mind that in January 2017 the elected branches of the federal
government were under unified Republican control led by Paul Ryan, Mitch
McConnell, and Donald Trump, three representatives of the will of the people to
whom Democrats very much wanted to say “No.” Democrats tell themselves a
bedtime story about that — that this was not the result of legitimate
democracy, which can never fail but can only be failed. That is a superstition,
one that James Madison had somehow managed to liberate himself from all the way
back in 1787. Madison helped to create a government of checks and balances.
I cannot think of a single thing about Washington today that makes me believe it needs one fewer check.
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