February 19, 2005


Some of the new "Debate Club" discussions hosted by Legal Affairs are really quite illuminating. This one, though, on whether or not to keep the Senate filibuster, brings up some bizarre attacks on a time-honored tradition:
The filibuster exists because the Senate failed to include a motion on the previous question in its rules when those rules were codified for the first time in 1806. As far as we can tell, this was more of an accident than anything else. "Theories of the Senate," including Johnn C. Calhoun's concurrent majorities, arose over the course of the 19th century about why the Senate lacked a limit on debate, but all of this was a rationalization for a thoughtless act in 1806. With that move, the Senate did not have a rule to limit debate and waited until 1917 to get the cloture rule—Rule 22—in place. A majority of senators appear to have favored simple-majority cloture in 1917 and at other times, but obstructionists prevented a rule providing for a lower threshold from coming to a vote...

Reading high constitutional principle into the filibuster and Rule 22 is unwise. To be sure, principle is articulated by senators in its defense; a few senators actually believe it. But brass-knuckle politics, not Senate representation or separation of powers, explain it. And self-serving senatorial interests, not constitutional principle, will save it, if it is saved.
In other words, there's no principled reason the filibuster exists, and a majority of Senators back in 1917 (and a good number before then) wanted to get rid of it but they couldn't. It's there by an accident of history and an oversight by the Framers. Meanwhile, those Senators today who still want to keep it around are just "self-serving" slaves to "brass-knuckle politics." Sure, maybe, but what was so great about those Senators who wanted to ditch the filibuster way back in 1917 or 1806 or whatever? Were they somehow less self-interested than today's bunch? Probably not.

(Well, okay, in the 1800s the pro-filibuster crowd probably included a lot of pro-slavery politicians, but surely that wasn't all there was to it. I'm just disinclined to think that Senators of yore were gentle, high-minded folks concerned only with the greater good...)

That said, I'm a) glad to see my favorite statistic in the world get used in this debate (that the 45 Democratic Senators actually represent a majority of Americans) and b) willing to abolish the filibuster if we can also reduce the number of state-wide Senate races to one per state and fill the other 50 seats in the Senate with "at-large" representatives elected nationally via some sort of byzantine voting system (the Hare method, say). Bring it on!
-- Brad Plumer 11:16 PM || ||