Defenders of the Senate filibuster like to wax poetic about our structure of government. The filibuster, the story goes, is one of the essential parts of our system of checks and balances. Without it, the majority party could run roughshod over the poor, helpless minority party. Thus, while the filibuster may provide temporary inconvenience, it is part of a much greater system we dare not tamper with.
This entire story is bunk, and it's time to put it out to pasture.
The Founding Fathers established our system of government as an intricate, interlocking system. The President is commander in chief, but the Congress declares war and controls the military purse strings. The President makes appointments, but they must be confirmed by the Senate. Congress passes legislation, but it may be vetoed by the President. The President is indirectly elected by the people via the electoral college, but may be impeached by the House and tried by the Senate. This is the system popularly known as checks and balances. It has nothing to do with the filibuster. Follow over the squiggle for more.
As the Federalist Papers make clear, the clear purpose of the inherent checks and balances set up by the Constitution was to weaken and slow down the government. But why would the Founders deliberately want to hobble government? And if that's the case, where does the filibuster fit into this scheme?
Everyone knows the year 1776 - the year the United States formally declared independence. Sometimes forgotten, however, is that the Constitution was not immediately drafted and adopted - the former colonies first attempted to operate as a loose confederacy of states, under the (aptly named) Articles of Confederation. The Articles of Confederation had proved unworkable. In fact, the Constitutional Convention was originally drafted to amend them - not to institute an entirely new system of government. In the event, though, the various statesmen who assembled at the Convention in 1787 had a fairly clear mandate for change. Under the Articles of Confederation, the national government was so weak that it was unable to act independently, and depended upon the individual states to even collect revenue. The national government had little power to even enforce its edicts.
The framers of the Constitution, therefore, wanted a stronger government. But! they were only a decade removed from the rebellion - a rebellion prompted in part in reaction to an overreaching, strong central government! Thus, the framers grappled with strengthening the central government, while at the same time protecting individual rights and the rights of the states (as a footnote, they actually botched the job. Despite the protestations of Madison in the the Federalist Papers, people did not trust the inherent structural checks and balances to protect their rights, and thus several amendments were immediately proposed to placate the anti-Federalists - what are known today as the Bill of Rights).
Now, many of the checks and balances were aimed at inherently kneecapping any single branch of government. By making various branches rely on each other, the framers hoped that the government would be less prone to sudden passions incited by demagogues. Congress itself was set up the way it was for much the same reason.
It is true and well known that the structure of Congress was a compromise between large states and small states. However, it is lesser well known that the structure of Congress was also set up to insulate members of Congress from sudden passions of the people (yes, that's the second time I've said sudden passions - hold on to it!). Anti-federalists agitated for yearly elections to the House of Representatives (and people complain about perpetual campaigns now!), as this would keep House members closest to the will of the people. Instead, terms were lengthened to two years, to put a little more space between the House and the people. The Senate represents the ultimate culmination of this desire. Senators were not directly elected by the people as today (thanks 17th Amendment!), but appointed by the States. Moreover, they had six year terms. Rather than having nationwide elections every 6 years for the entire Senate, Senators were put on a rolling basis, so that the majority of Senators would always be further from reappointment than closer to it. The Senate, that is, was the ultimate firewall.
What were these sudden passions the framers were so concerned about? As the Federalist Papers make clear, it was the Rhode Island experience. Federalist 10, in speaking of the dangers of factions, mentions
A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project . . .The dangers of paper money and abolition of debt wasn't a theoretical fear for the framers (who, as Beard was probably one of the first to point out, were largely people who were bankers, property holders, and were more likely to be lenders than borrowers). They were born from the experience of Rhode Island, the previous year in 1786.
The Framers feared a repeat of the Rhode Island experience, as is clear from Madison's references to Rhode Island in the Federalist Papers. Madison criticized the number of Rhode Island legislators in Federalist 55 (too many! too much passion!) and their brief length of service in Federalist 63 (too short! such passion that they have passed "iniquitous measures"). What were these passionate, iniquitous measures?
In short, debt relief for poor farmers. Here is a good overview. In order to get out from under crushing debt loads, Rhode Island farmers overwhelming elected in 1786 a pro-paper-money legislature. The Rhode Island legislature issued paper money and passed legal tender laws to force people to accept the paper money. The rest of the country was horrified at the actions of Rhode Island (whether this was because of class or fear of inflation, etc., I'll leave to the professional historians).
So, one of the overriding concerns of the Constitutional Convention (which, tellingly, had delegates from every state EXCEPT Rhode Island) was no more Rhode Islands! Paper money was seen as a rapidly spreading fever. So, the Senate was constructed as a fever-containment mechanism. Every state would get 2 Senators - thus, even if a large number of voters were "infected," they would hopefully be limited to geography to a smaller number of states. By making Senators appointed by legislatures, instead of the people, the Senators would have at least one layer of protection between themselves and any crazy ideas like paper money. Moreover, as mentioned before, Senators would be appointed on a rolling basis. While a few infected Senators might still be appointed by the states, they couldn't get immediate majorities. Hopefully, over the next 2 years, the fever would subside, no more infected members would get into the Senate, and cool reason (and 4 years removal from reappointment) would cure the Senators of their infection.
Where does the filibuster fit into this? It doesn't. The filibuster was never part of the checks and balances of our government. The essential check of the Senate was to provide a long-standing body that would be removed from immediate reelection. If a majority of Senators were for an idea, then that meant a considered, seasoned body was for an idea, and could give the House its enlightened stamp of approval. The Constitution was designed to protect individuals, not political parties.
Ready for a real gob smack? The first Senate filibuster didn't occur until 1837. Cloture didn't come around until 1917.
Arguably the most famous Senate filibuster of all time was entirely fictional, in Frank Capra's 1939 flick, Mr. Smith Goes to Washington. The reality of the filibuster is much uglier. The record for longest filibuster was held by Strom Thurmond - filibustering the Civil Rights Act of 1957. Southern Senators used it again to try to stop passage of the Civil Rights Act of 1964. Republicans have used the threat of filibuster in record numbers recently. One of the casualties of this record use has been the United States court system, which is suffering a full blown crisis.
The filibuster is nothing more than a Johnny-come-lately rule of the Senate, and a bad rule at that. It's been the source of record abuse and has ground legislation and presidential appointments to a halt. It's turned the Senate from a group of enlightened, seasoned legislators into a place where bills go to die. Rather than majority rule, which the Founders feared but ultimately endorsed, the majority of the United States people now find themselves helpless against an entrenched, obstinate minority.
The Senate is designed to protect against the intemperate, short-lived passions of the people. The Democratic majority in the Senate is not such a passion. When the new Senate convenes, the Democratic Senators will have won election or reelection in 2012, 2010, and 2008 (and indeed, many were first elected in the 1980's and 1990's). If the majority of the United States Senate supports an idea, then under our Constitutional design, the United States Senate should act!
Let's do the Founders proud, and kill the filibuster.