As you know, the U.S. Senate Thursday adopted what the New York Times called “the most fundamental alteration of its rules in more than a generation,” banning the use of the filibuster to block confirmation of any presidential appointees other than nominees to the U.S. Supreme Court.
According to me at least, the change doesn’t go far enough, but is a very significant breakthrough for the quaint notion of majority rule.
Statements of outrage by by Senate Republicans over what the Democrats had just done and by Democrats over what the Republicans have done to make them do it were hilarious in their bipartisan hypocrisy. There are a few serious filibuster reformers (Tom Harkin of Iowa, Tom Udall of New Mexico and Jeff Merkley of Oregon, all Democrats) who have been pushing for something like this — and more — for years, even when their party did not stand to be the immediate beneficiaries.
But the majority of senators — certainly including the current leaders of both caucuses, Democrat Harry Reid and Republican Mitch McConnell — have been switching their fundamental position on filibusters regularly, depending on which party stood to benefit from changing the rules.
I’ve written about filibuster history and origins before, so unless you are interested enough to click the link 10 words back, allow me to just summarize a few points that contradict a great deal of the nonsense usually uttered by opponents of filibuster reform.
Notwithstanding the constant invocations of the Founding Fathers by opponents of filibuster reform, the filibuster has nothing to do with the Founding Fathers. It isn’t in the U.S. Constitution. The Framers never endorsed it, never heard of it, never thought of it. In the early days of the Senate (when many of the Framers were actually serving in Congress) there was no such thing. The Senate never affirmatively decided to permit filibusters, but in the absence of a rule (such as the House has) to force a vote on final passage of a bill, opportunistic senators came up with the tactic.
The filibuster has nothing to do with the sacred principle of “majority rule.” It is the opposite. It prevents a majority of the Senate from passing a bill or confirming an appointment unless it is a supermajority of at least 60 members.
Notwithstanding the constant silly claim that the filibuster is synonymous with “full debate” of matters before the Senate, it has almost nothing to do with debate. In fact, in recent decades and for efficiency’s sake, the Senate practice is that when someone notifies the Senate of his intent to filibuster a matter, the Senate usually stops debating the matter entirely and goes on to other business unless the sponsors of the matter know that they can muster a supermajority to force a vote.
We still have the filibuster. Thursday’s “nuclear option” action doesn’t bar the use of the filibuster to prevent a vote on legislation, nor on confirmation of Supreme Court nominees (although that part seems extremely likely to change). It would be OK with me if the new principle, let’s call it “majority rule” until we can come with a catchier name, was applied to the passage of legislation. And bear in mind that if it was, the the Framers actual plan for deterring unwise or hasty action — you know, the plan that requires a bill to be separately passed by majorities in two different houses of Congress, elected on different schedules, and then signed by the president, elected on yet another schedule — would still be in effect and the United States would still stand out among the democracies of the world as having perhaps the largest number of “checks and balances” which make it perhaps the hardest country in the democratic world to enact a law.