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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.  

Originally posted to MPociask on Wed Nov 14, 2012 at 11:50 AM PST.

Also republished by Community Spotlight.

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Comment Preferences

  •  Personally, I'd like to see some of the old farts (16+ / 0-)

    just TRY to actually stand up and filibuster. Bernie Sanders is probably the only Senator over 60 who can do it. AFTER seeing some of the others fall on their faces trying to live up to their bluster, then we can talk about doing away with the filibuster.

    OMG, have I become a sadist?

    Eliminate tax breaks that stimulate the offshoring of jobs.

    by RJDixon74135 on Wed Nov 14, 2012 at 12:17:28 PM PST

  •  Darn you uneditable polls! (9+ / 0-)

    Of course a spelling mistake slips through the one part I can't fix.  

    Hope this diary is a useful primer and not rehashing stuff everyone knows already.  

  •  "Protection of the minority" (16+ / 0-)

    Exactly right.  BTW, the filibuster isn't needed to protect the "small states".  Small states are already over-represented in the Senate.

    •  True that (15+ / 0-)

      Consider that California, with ~38,000,000 people, has two U.S. Senators.  That's more people than the the least 21 populous states combined.   The kicker?  Those 21 least populous states have 42 Senators - almost half of the Senate, even though combined they have less people than the largest state by population.

      Here's a fun hypothetical - assume California is strongly Democratic - let's say 60/40.  Now assume the other 21 states are just as strongly Republican - also 60/40.  For simplicity, we'll say California's population is 38 million even, and the 21 other states have exactly 38 million people too.  How does this shake out, assuming Democratic states elect Democratic Senators and Republican states elect Republicans?  Well, you've got your 2 Democratic Senators, and your 42 Republican Senators - even though among all 22 states, the number of Democratic and Republican voters are exactly equal.  

      •  Any idea what the actual breakdown is? (0+ / 0-)

        In other words, of the 21 least populous states, how many Republican senators are in office?  How many Democrats and Independents?

        "Two things are infinite: the universe and human stupidity, and I am not sure about the universe." -- Albert Einstein

        by Neuroptimalian on Wed Nov 14, 2012 at 03:51:21 PM PST

        [ Parent ]

        •  I glanced at the states (2+ / 0-)
          Recommended by:
          ladybug53, monkeybrainpolitics

          The thought experiment was more for illustrative purposes on the power of small states, and not so much actual Senate breakdown.  There are small blue states as well as small red states - for every Wyoming a Vermont.  Without totaling it all up, it looks slightly more red, but I wouldn't put money on that.  

        •  No idea. (1+ / 0-)
          Recommended by:
          mightymouse

          But a person living in Idaho has 3x the Congressional representation than a person in California.

          •  Not really. (0+ / 0-)

            A person living in Idaho has one Representative and two Congressmen, just like the rest of us from any other state.  It's only the Idaho citizenry as a whole which could be alleged to have an advantage.  But since Idahoans don't have a hive mind acting with identical beliefs of a dangerous sort, there doesn't seem to be any real benefit.

            But I get what you're trying to say.

            "Two things are infinite: the universe and human stupidity, and I am not sure about the universe." -- Albert Einstein

            by Neuroptimalian on Thu Nov 15, 2012 at 07:52:31 AM PST

            [ Parent ]

      •  Congratulations (0+ / 0-)

        You have determined the difference between the senate and the house and part of the reason for the difference.

  •  Almost. (8+ / 0-)

    "The Senate is designed to protect against the intemperate, short-lived passions of the people."

    It was. The Senate represented the states, the House represented the people.

    Then we moved to direct election of senators, and essentially threw that out the window. There is really not a lot of point to the Senate in its current state. We'd probably be better served by dissolving it and removing the cap on house reps.

    •  Even better (3+ / 0-)
      Recommended by:
      Kevskos, hazzcon, RUNDOWN

      Senates are an elitist anachronism.  "States" don't have discrete interests worth special representation in a polity's legislatures.  People matter, acres don't.  The purpose of Senates is for older, richer, whiter, maler people to have a special chamber that gives them a veto over government.

      The federalist papers make that clear.  This business of "representing the states" appears to be an after the fact rationalization of the true intent.

      That said, I understand you basically need unanimity to abolish the senate at least, under the existing constitution, so it's unlike to happen short of a constitutional convention.

      But I bet the powers of the Senate could be stripped away much like the UK house of lords.  Turn it into a debating club for aristocrats with little real power.  Still needs regular constitutional amendments, but at least that's somewhat plausible.

      •  The Senate was intended to be populated (7+ / 0-)

        by statesmen. It still serves a purpose. Just imagine the effect of the tea people House if they were not restrained by the Senate.

        Others have simply gotten old. I prefer to think I've been tempered by time.

        by Just Bob on Wed Nov 14, 2012 at 03:34:25 PM PST

        [ Parent ]

        •  None (0+ / 0-)

          No effect.  Still a Democratic President.

          It's funny too, the 2010 election is the only time I am aware where the House changed hands, but not the Senate.  Despite the design of the Senate with the 1/3 elections per cycle, every other time either both chambers change hands, or only the Senate does (like under Reagan, or when it briefly went Democratic 2001-2002.

          Honestly for the occasional window that wingnuts would have the government, liberals would be far better off in the long term without any Senate.   And when wingnuts do run wild, the nice thing in such a system is that voters know exactly who to blame.  Margaret Thatcher did not kill the NHS despite having the power to do so, because voters would have destroyed her party.  Popular sentiment is a better check on wingnuts than Senate filibusters.

          Consider:
          Canada, UK: Weak/Powerless senates
          Norway, Denmark, Sweden:  Unicameral legislatures
          Australia: Senate elected by proportional rep, and can be overridden by House in extremis (double dissolution)
          Japan, France:  Senates considerably weaker than House

          Basically no one gives their upper chamber equal power to the lower anywhere else.  It's a bad system.

      •  welll (0+ / 0-)

        Where exactly in the Federalist Papers are you coming up with that? I'm assuming you are referring to the assertation that uneducated part time politicians might serve to be balanced out?

        While that may be the case, it is a bit of cherry picking. The semi-autonomous nature of the states and the fact that the federal government or more populous states should not be able to steamroll them are mentioned with much more frequency.

        "[..] giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems."

        "In this spirit it may be remarked, that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic."

        "A government founded on principles more consonant to the wishes of the larger States, is not likely to be obtained from the smaller States. The only option, then, for the former, lies between the proposed government and a government still more objectionable."

        It is unfortunate that the concepts of states rights have been so intermingled with racism and slavery, but that is a different discussion.

        •  Start with Federalists 62 and 63 (1+ / 0-)
          Recommended by:
          Scientician

          62:

          The qualifications proposed for senators, as distinguished from those of representatives, consist in a more advanced age and a longer period of citizenship. A senator must be thirty years of age at least; as a representative must be twenty-five. And the former must have been a citizen nine years; as seven years are required for the latter. The propriety of these distinctions is explained by the nature of the senatorial trust, which, requiring greater extent of information and stability of character, requires at the same time that the senator should have reached a period of life most likely to supply these advantages; and which, participating immediately in transactions with foreign nations, ought to be exercised by none who are not thoroughly weaned from the prepossessions and habits incident to foreign birth and education.
          Another defect to be supplied by a senate lies in a want of due acquaintance with the objects and principles of legislation. It is not possible that an assembly of men called for the most part from pursuits of a private nature, continued in appointment for a short time, and led by no permanent motive to devote the intervals of public occupation to a study of the laws, the affairs, and the comprehensive interests of their country, should, if left wholly to themselves, escape a variety of important errors in the exercise of their legislative trust.
          63:
          Thus far I have considered the circumstances which point out the necessity of a well-constructed Senate only as they relate to the representatives of the people. To a people as little blinded by prejudice or corrupted by flattery as those whom I address, I shall not scruple to add, that such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions. As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn.
  •  Just blow Cloture off, one line, thats all? (1+ / 0-)
    Recommended by:
    walkshills

    1917 set the stage for the filibuster as we know it today.

    In WW1 there was congressional gridlock, the Senate did next to nothing, could barely get a budget passed. This was the formative period for what we now know as the filibuster.

    Sheese......

    FDR 9-23-33, "If we cannot do this one way, we will do it another way. But do it we will.

    by Roger Fox on Wed Nov 14, 2012 at 01:17:10 PM PST

    •  That's not what I'm proposing (2+ / 0-)
      Recommended by:
      walkshills, mightymouse

      I'm proposing an end to the practice popularly known as filibustering.  I'm not an expert on parliamentary rules, but I'd think you could effectively do this by either lowering the cloture minimum from 3/5 to 1/2.  In other words, if the majority had the capability of passing a bill, they would also have the capability of ending debate on a bill.  

  •  Why it's more complicated than you might think. (1+ / 0-)
    Recommended by:
    MPociask

    Today (11/14) on David Waldman's (KagroX) netroots radio program (Kagro in the Morning), he spent the second hour giving what amounted to a tutorial on The Motion to Proceed, the filibuster of same, and why it's all more complicated than you might have thought.

    Get the podcast.  You will learn a lot from it.

    Alpacas spit if you piss them off. I'm somewhat less patient.

    by alpaca farmer on Wed Nov 14, 2012 at 05:48:45 PM PST

    •  I defer to David Waldman (2+ / 0-)
      Recommended by:
      walkshills, ladybug53

      On all matters of procedure - guy is obviously a whiz at it.  To respond to Roger Fox upthread, I was responding to a more narrow topic than the history of the filibuster generally, and looking specifically at what role the Senate plays in our government.  Even more specifically, I was looking at the notion of the filibuster as part of the checks and balances of our government.  If cloture was reduced to one line, it's because the filibuster, cloture, and motions to proceed are apart from and merely trivial footnotes to our Constitution's design.

      I am willing to believe that the Senate rules are very complex.  I also know that the Senate gets the chance to write its own rules, and nothing stops them from making them simpler (other than themselves).  

  •  Brilliant synopsis of US history on the subject. (0+ / 0-)

    Thanks.

    "Well, yeah, the Constitution is worth it if you succeed." - Nancy Pelosi // Question: "succeed" at what?

    by nailbender on Wed Nov 14, 2012 at 10:23:46 PM PST

  •  Shrink It (3+ / 0-)
    Recommended by:
    ladybug53, stormicats, mkor7

    There are probably times when the filibuster is appropriate. But for the most part it should be gone. Perhaps there should be a rule to permit extended discussion if an issue is deemed critical by some small group of Senators. But that would mean a long discussion, culminating in a vote.

    One place where there should have been a filibuster is over DOMA. This was a piece of legislation intended to take away the rights of a minority. It should have been roundly filibustered by the Democrats.

    But the normal business of government should not be stopped at any point.

    I think that it would be possible right now to get a bill through against the filibuster if we had 50 Senators devoted to it and a VP willing to go to bat. One of those Senators on the majority side should put up a bill under what I call "Constitutional rules". That is, the bill itself should specify the rules under which it will be considered and voted on.

    The opposition will, of course, object. Then the president of the Senate (in this example, the VP) would rule the bill valid. The opposition would object to the ruling of the chair and that would come to a vote.

    That vote would be decided under current rules by a majority and it would not be debatable. Since there would be 50 Senators and the VP to uphold, the chair would be upheld and the bill would go forward.

    This would permanently get rid of the filibuster because it would be clear that it could not be sustained if there were a clear majority to pass a bill.

    What, exactly, would this require that we don't have right now? Well, guts.

    So, don't expect the filibuster to go away any time soon.

  •  I like the filabuster (2+ / 0-)
    Recommended by:
    howd, akmk

    but the motion to proced needs to go away and filabuster should require someone to actually stand up and talk and talk until they can't talk any more

    I'm fine with the minority making a public stand to express that (insert bill here) does not have their support but they should not be allowed to obstruct matters

  •  I thought Amy Klobucher made a good point (4+ / 0-)

    Even forcing Senators to stand on their hind legs and talk would cut it off.  I remember hearing Byrd filibuster against financing Bush's War ( I was too young to remember the Civil Rights filibuster, when he wasn't on the side of the angels.)  I was amazed at the way he reached for one of a Senator's strongest weapons--the ability to bore at great, great length.  It took stamina and skill.  We'd see how many of these right wing Senators really wanted to do it. That plus the end of secret holds would do a lot.

  •  get rid of this thing (0+ / 0-)

    An ambulance can only go so fast - Neil Young

    by mightymouse on Thu Nov 15, 2012 at 03:48:15 AM PST

  •  Did you feel and write the same (0+ / 0-)

    When W. was in office and senate republicans threatened the nuclear option?  Just curious....

    •  I hadn't thought about that issue (2+ / 0-)
      Recommended by:
      J M F, progressivevoice

      In depth at the time, but my general inclination is that all Presidential appointments deserve an up or down vote, and that Senate confirmation should mostly check whether the proposed person is fit for the job.  Republicans shouldn't have blocked nominees in the 90's for being too liberal, and Democrats shouldn't have blocked nominees in the 00's for being too conservative.  If you don't want conservative nominees, make sure there's not a conservative President.  

      Elections have consequences, win or lose.  

    •  They did/do it anyway. Effectively. (0+ / 0-)

      I know, let's not even allow hearings for 60 Clinton appointees... so there's be plenty of spots free if our guy gets in, and then we can scream like little girls about Democratic obstruction when only ~20% of the most conservative of those get rejected.

      That'll do it.

      And now of course we have the unprecedented number of Obama appointments languishing. With no valid concerns about their suitibility

      Do you not realise this? Or is your "concern" worthy of the quotes I just put around it.

  •  I want the brutal filibuster instead of painless. (3+ / 0-)
    Recommended by:
    howd, Amber6541, progressivevoice

    I want the burden on the filibustering party. 2/5 of senators duly sworn must affirm a filibuster rather than 3/5 to end one, and the person holding the gavel can request a vote at any time.

    That means you can filibuster an important bill or nomination, but you must keep 40 senators in the chambers indefinitely.

    If comity is restored, this gives majority has the option to be nice to the minority.

    If they're being obstructionist , then they get to live on the floor. No fundraising. No talk shows. No campaigning. No comfy beds.

    Just media attention showing everyone that you believe so strongly against whatever you're filibustering that you're willing to do one.

  •  It was a decent idea, but needs decent people (1+ / 0-)
    Recommended by:
    Amber6541

    To implement it properly, and unfortunately there are very few of those left.

    New Arizona state motto; 'Yeah, but it's a dry hate!'

    by Fordmandalay on Thu Nov 15, 2012 at 06:05:53 AM PST

    •  Ezra Klein argues that it's unconstitutional .... (0+ / 0-)

      and an accident.

      Wash. Post - Is the filibuster unconstitutional?

      In 1806, the Senate, on the advice of Aaron Burr, tried to clean up its rule book, which was thought to be needlessly complicated and redundant. One change it made was to delete something called “the previous question” motion. That was the motion senators used to end debate on whatever they were talking about and move to the next topic. Burr recommended axing it because it was hardly ever used. Senators were gentlemen. They knew when to stop talking.

      That was the moment the Senate created the filibuster. But nobody knew it at the time.

      "But all in all, it's been a fabulous year for Laura and me." - bush summing up his first year in office, 3 months after 9/11, Washington, D.C., Dec. 20, 2001

      by rmx2630 on Thu Nov 15, 2012 at 12:24:59 PM PST

      [ Parent ]

  •  To keep from the tyranny of the majority, the (1+ / 0-)
    Recommended by:
    progressivevoice

    filibuster should be allowed so folks (for example against Keystone pipeline, subsidies for big corporations, a really bad appointment to the Supreme Court, etc.) have to debate and defend their positions.  

    Folks will only use this when necessary if they have to use to raise the issues that need to be raised.

  •  I always thought it had to do with slavery (0+ / 0-)

    that slave power wanted to be sure that an imbalance of slave and anti-slave states would not be able to end the institution.  

    racists have certainly made ample use of the fillibuster.

  •  The argument that the Senate "debates" is a joke. (1+ / 0-)
    Recommended by:
    MPociask

    Every senator knows how they are going to vote before a bill comes to the floor.

    Almost no one has ever been swayed by "debate."  In fact, you almost never see more than one senator on the floor at the same time and in those extremely rare times when one senator addresses another it makes national news.

    Time to end the filibuster go majority control and lets decide it at the ballot box every two years!

  •  Many of the prior efforts to . . . (0+ / 0-)

       change the filibuster rules were bi-partisan efforts. Think this one will be?

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