By a vote of 52-48, the U.S. Senate this week enacted a profound, historic and overdue change in its operating procedures and in the way that power is dispersed within the “world’s great deliberative body,” as senators like to fancy themselves. By greatly restricting use of the filibuster to block Senate action, they have voted to restore the chamber to the constitutional design of those who created it.
We should thank them for it.
The Founding Fathers were very clear: In most cases, they opposed requiring a super-majority, such as the 60 votes required under the filibuster. In drafting the Constitution, they applied a supermajority requirement to only a handful of very specific cases, such as the ratification of a treaty or the removal of a president or other elected federal officer.
One of the primary drafters of the Constitution, Alexander Hamilton, explained that decision in Federalist Papers No. 75:
" … all provisions which require more than the majority of any body to its resolutions, have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority… And the history of every political establishment in which this principle has prevailed, is a history of impotence, perplexity, and disorder."
I don’t think there is any question that in recent years, the growing use and abuse of the filibuster has produced the very “impotence, perplexity and disorder” that Hamilton warned against. The difference between his time and ours is that too many of today’s politicians see “impotence, perplexity and disorder” not as problems to be avoided but as goals to be pursued. The filibuster had become a dangerous weapon in their hands.
James Madison, known as “the Father of the Constitution”, also addressed the issue head on in Federalist Papers No. 58:
"It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision….
In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences."
Again, Madison’s prescience is impressive, because that is precisely what abuse of the filibuster has produced. It has allowed an interested minority to screen themselves from equitable sacrifices to the common good, and to attempt to extort “unreasonable indulgences” from the majority.
The filibuster is an extra-constitutional contrivance adopted long after Hamilton, Madison and their colleagues left the scene. Once used rarely, in recent years it has become a standard obstacle to almost any action of any significance. The change approved Thursday in the Senate abolishes the filibuster only when considering presidential nominations to Cabinet jobs and other executive branch positions, and to judicial nominations other than to the Supreme Court.
It ought to be abolished altogether. Wipe it off the books.
