In Iraq and Afghanistan, American legal scholars and Bush administration officials have helped to draft constitutions that reflect what our country has learned about self-government over the past few hundred years. In the process, they’ve tried to impart the insight that unmitigated majority rule won’t create the kind of durable, liberal order that people generally mean when they refer to democracy. Both the Afghan and interim Iraqi constitutions draw on American experience to structure governments that do not channel the popular will all that directly.
Meanwhile, in Washington the Bush administration and its allies are fighting to undo one of our own most useful anti-majoritarian devices: the Senate filibuster. To be sure, the contexts are different. In Iraq and Afghanistan, would-be theocrats who think they’re channeling God want to impose their narrow-minded vision on everyone else. In our country … oh, never mind. Though our political culture is more peaceful and evolved, the same principle of tempering majority rule is at risk in the Republican leadership’s current efforts to stop Democratic filibustering by pushing for the so-called “nuclear option.” For a democratic system to function fairly and effectively, 51 percent of a population, or of a legislative body, cannot simply impose its will on the other 49 percent.
Largely because of the way it was used to block civil rights legislation in the 1950s, the filibuster has a bad name among liberals. One thinks of Strom Thurmond empruning himself in the Senate steam bath so he could rant against the 1957 Civil Rights Bill for 24 hours without taking a leak. (The bill passed anyhow.) Because it’s a tool for slowing, moderating, and preventing change and because the thrust of most change in the previous century has been progressive, many on the left view filibusters—which these days take place invisibly and don’t require bladder control—as a weapon for reactionaries. Some, like my colleague Tim Noah, take the consistent position that even though Democrats are now in the minority, they should seize the opportunity to get rid of it.
But the filibuster is inherently “conservative” only in the archaic sense of conservatism as a philosophy that rejects drastic change. With radicalized Republicans in control of two and arguably three branches of government, it is the Right that’s eager to remake society, by undoing our progressive retirement and tax systems, blurring the separation of church and state, and rolling back environmental and civil rights laws. Liberals, on the other hand, find themselves trying to prevent radical change by reaching for one of the tools Senate minorities use to avoid being steamrollered by majorities.
It’s worth noting that the filibuster is only one of the many devices we have to prevent top dogs from trampling bottom dogs. Closer to the heart of our system are such anti-majoritarian structures as the Bill of Rights, the separation of powers, the independent judiciary, the bicameral legislature, and the Senate’s staggered, six-year terms. All of these prevent popular whim from too readily becoming the law of the land. Other anti-populist features of our system include the Electoral College, the super-majority requirement for impeachment, and the elaborate procedure required for amending the Constitution. We aren’t a democracy in its pure form.
To believe that some Madisonian speed bumps are a good idea does not mean you have to like all of them. Like Noah, I’m no fan of the Electoral College because it doesn’t so much protect minority rights as introduce a randomizing element into presidential elections, sporadically turning losers into winners. Another objectionable practice, closely related to the filibuster, is the anonymous legislative “hold.” To give one senator veto power over 99 is not an anti-majoritarian check. It’s a blockade.
The filibuster, on the other hand, is a pretty reasonable recourse. Though not written into the Constitution, it took hold in the early 19th century as an expression of the founders’ vision of the upper chamber as the “saucer” that cools the fiery liquids pouring out of the more popular assembly, the House. The filibuster takes the principle behind the Senate—of staving off precipitate action, forging compromise, and protecting the interests of small states—and expands the umbrella to cover minorities of any kind that object to major change. Such change can be liberal, as in the case of Clinton’s national health-care reform, or radically right, like Social Security privatization and the flat tax. What having a filibuster means is that you can’t do big things with a bare majority.
Sen. Bill Frist, the chief promoter of the nuclear option, says he wants to do away only with filibusters of judicial nominations and would not rule them out of order with respect to legislation. But there’s no principled, or even plausible, distinction here. The Constitution says “advise and consent,” which means senators get to play a role in judicial selection. They’re within their rights to use every available procedure to block nominees they object to.
Almost everyone’s a hypocrite on this topic. Whoever is in the opposition derails confirmation votes from time to time—as Republicans did when they used the filibuster to spike LBJ’s attempted elevation of Abe Fortas to chief justice in 1968. Whoever is in the president’s party decries the unfairness of denying nominees an up-or-down vote. Then the White House changes hands and everyone switches sides in the argument. The contradictions of the past notwithstanding, Frist and his colleagues should let the filibuster stand, not merely because they will be the opposition again one day and may need it, but in recognition of the minority’s legitimate role in democratic decision-making. In using this tool to resist an increasingly tyrannical majority, Democrats are doing nothing more than what Republicans have done themselves, and nothing less than the founders envisioned.
