Jason Lewis: Majority rule is undemocratic

Jason Lewis
Jason Lewis

Minnesota-based righty radio talker Jason Lewis, who also writes op-eds for the Strib, used that latter platform on Sunday to argue that the recent change in the U.S. Senate filibuster rule violates the Framers’ intentions, even as he acknowledged that the Framers expressed no such intentions.

Lewis is smart, glib and extremely successful. He likes the history of the founding and refers to it often but always in the authorized righty way wherein the Framers’ chief intention was to evince their disapproval of 21st-century liberalism. OK, thanks to the First Amendment, he has a right to do that. But his Strib piece of Sunday, headlined: “Filibuster’s Demise Harms Democracy,” threw history and logic into, well, the dustbin of history and logic.

So, just to be clear, the Framers did not put the filibuster into Constitution. In fact, it is not mentioned in the Constitution, which Lewis apparently knows. But via a transparent sleight of illogic, he staples the filibuster to their unexpressed intentions. Here’s the Lewis passage:

The Constitution, while not mentioning the filibuster itself, contains five explicit provisions for Senate supermajorities. Indeed, the Senate owes its very existence to the notion that government action required much more than a slim majority vote — it requires a consensus. That’s why there are two senators allotted per each state, regardless of population. And why, up until 1913, senators were chosen through state legislatures and not by direct vote.

Let’s briefly deconstruct that. The authors of the Constitution considered whether certain types of congressional actions should require more than a majority vote, and they answered yes, and they specified them. It takes, for example, a two-thirds vote of the Senate to ratify a treaty. It takes a two-thirds vote of the Senate to convict a president of an impeachable offense. It takes two-thirds of both houses to refer a proposed constitutional amendment to the states for ratification, and then it takes three-fourths of the states to ratify.

The Framers also required that many presidential nominations — cabinet members and federal judges — be subjected to the “advice and consent” of the Senate. But that was not one of the matters for which the Framers required a supermajority. They might have. They could have. They didn’t. Apparently, their obvious intention to do that slipped their minds.

A few decades later, senators figured out that a minority could block ordinary legislation from a final vote by talking and refusing the yield the floor. The first real filibuster occurred in 1837 . Nothing to do with the Framers, all of whom were dead. Just a glitch in the Senate rules. (The Constitution leaves it up to each House of Congress to set its own rules, and does not require a supermajority to make or change a rule.)

For about the next 100 years, a single senator could prevent a vote by filibustering. Does one gather that Lewis thinks this was a good thing? Was this the Framers’ intent?

Fast forward to World War I. The isolationist wing of the Senate filibustered a bill that had overwhelming support to allow President Woodrow Wilson to arm merchant ships. Most of the Senate and most of the country was outraged that a small group could veto the wish of the president, the majority of the Senate and the majority of the country. The result was the first cloture rule, adopted in 1917, which required a two-thirds vote to force a vote on a bill. Was this Lewis’ golden age, when one-third of the Senate could trump the other two-thirds and the majority of the House and the president? Since it was the product of a 1917 rule change, could it have much to do with the Framers’ vision?

For most of the 20th century, the true golden age of the filibuster, the main accomplishment of the filibuster rule was to enable southern senators to block all civil rights bills. Defenders of the filibuster should ask themselves this question: Not counting the fictional one in “Mr. Smith Goes to Washington,” what were the terrible laws and appointments that would have happened in America if they had not been blocked by a brave and highly principled filibuster? So far, we’ve got a law allowing the president to arm ships in time of war, and we’ve got decades of blocked efforts to grant any measure of equal rights to southern blacks.

I am actually not aware of an example that makes the filibuster look good in retrospect, but maybe there is one. Mr. Lewis, do you have one?

The last big historical development was in 1975, featuring our own Walter Mondale during his Senate days, when the number of votes needed to cut off debate on most matters was lowered to three-fifths, or 60 votes.

Back to Jason Lewis, who wrote of the recent change in the filibuster rule by the current Democratic majority:

It was this out-of-control Senate leadership that actually voted to end the 60-vote supermajority requirement so much a part of the founders’ wisdom.

The 60-vote supermajority was a gift from the Framers except for the small historical problem that it dates from 1975. Does Lewis know any of this history? I suspect he does but it is too inconvenient to mention.

I will gas on no further (at the moment). If any reader, including Mr. Lewis cares about filibuster history, here’s a great summary by Sarah Binder, one of the leading scholars on that history.

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Comments (44)

  1. Submitted by Greg Kapphahn on 12/09/2013 - 11:19 am.

    As Is the Case with So Many “Conservatives”

    Jason Lewis’ has a rather interesting definition of Democracy:

    When HIS side wins, that’s “democracy.” Whatever enables his side to get their way is “democracy.”

    Mr. Lewis’ definition of “democracy has NOTHING to do with majority rule. His only concern is whether his side wins, since he, quite dysfonically, believes that his “side” is the keeper of all “wisdom,” “truth,” and “blessedness.”

    That being the case (in his warped and defective worldview) his side should and MUST ALWAYS win. Any other outcome is “anti-democratic.”

    Of course the rest of us end up wishing that Mr. Lewis had been raised and educated by people who taught him how to objectively evaluate information from many different sources and come to rational conclusions based on logic rather than by folks who beat (literally or figuratively) out of him any inclination to do so, since facts, logic and objectivity were and are the enemy of their “true beliefs.”

    Sadly, for Mr Lewis, any attempt to grow past the narrow ideology with which he was raised would seem as if he were being disloyal to those family members, clergy, and professors who taught him everything he believes. In the end, his ancestor worship will continue to trump his ability to be rational, likely for the rest of his life.

    His adherence to this “conservative” form of political correctness is likely insurmountable.

  2. Submitted by Rick Ryan on 12/09/2013 - 11:39 am.

    Once again Lewis ignores the facts.

    If the facts don’t agree with your point of view just ignore them. Lewis and Kersten are able to divine the will of the “founders” (perhaps through divine intervention) that have been dead for over 200 years. If only we all had such powers.

  3. Submitted by RB Holbrook on 12/09/2013 - 12:00 pm.

    Supermajority vs. consensus

    I know Mr. Lewis is really smart and went to college and everything, so perhaps he could explain why the Founders so valued consensus over majority vote that they adopted a tie-breaking provision for the Senate. He might also explain why the listed supermajority requirements are not an exclusive list of the constitutionally mandated supermajorities (extra points for telling us why the maxim “expressio unius est exclusio alterius” was either unknown to, or ignored by, the Founders).

  4. Submitted by Dennis Tester on 12/09/2013 - 12:17 pm.

    Jason is just having a little fun

    He knows full well that the republicans will benefit from the rules changes after the 2014 elections and like most pundits, he hasn’t decided yet whether they should change the rules back or keep the changes and use them to their advantage.

    • Submitted by Jackson Cage on 12/09/2013 - 03:27 pm.

      Pardon any typos, I’m giggling

      Dennis, did you just cut and paste that from your Romney landslide prediction?

  5. Submitted by Pat Berg on 12/09/2013 - 12:26 pm.

    Eric . . . . . . .

    “The 60-vote supermajority was a gift from the Framers except for the small historical problem that it dates from 1975.”

    Eric, you rock!

    • Submitted by Stu von Wald on 12/09/2013 - 01:25 pm.

      Ditto Pat Berg

      “The 60-vote supermajority was a gift from the Framers except for the small historical problem that it dates from 1975.”

      I would say that Mr. Black discredited Lewis’ whole argument in one sentence. It’s amazing how facts tend to do that.

  6. Submitted by Todd Hintz on 12/09/2013 - 12:37 pm.

    Majority Rule

    I wonder if Mr. Lewis thought of this point when people wanted to push for an amendment banning gay marriage under the guise of “majority rules.” How many times during the campaign did we “but the majority of people think marriage should be between one man and one woman”? Then they changed it to “think of the children” when the polls didn’t go their way and most Minnesotans indicated they would vote down the amendment.

  7. Submitted by Peder DeFor on 12/09/2013 - 12:46 pm.

    The Real Wrong

    I think I can live with just about any set of filibuster rules that are out there, but what Harry Reid and the Senate Dems did was wrong. If you want to change the structural rules, then you pick a date after the next elections and you set them for then. If you do it before then, it’s a power grab.
    This is akin to the Texas GOP redoing the districts mid-decade. Not illegal, but definitely against tradition. (And if you’re going to object that current Dems had reason and the Texas GOP didn’t, please check the results of the 2002 elections.) Sometimes tradition is the biggest protection against power.

    • Submitted by RB Holbrook on 12/09/2013 - 02:45 pm.

      Against tradition?

      Not exactly. The 1975 reforms were adopted towards the beginning of the session, and were effective immediately.

      Senate rules continue from one session to the next. If a rule is bad or unworkable now, what is the point of not changing it immediately?

      • Submitted by Peder DeFor on 12/09/2013 - 09:39 pm.

        Early 1975

        RB, do you know what was talked about and/or negotiated before then? It looks like the rules were changed not long after new Senators were sworn in. That would fit with what I was saying about setting a change ‘after’ an election, but I don’t know that this is what happened here. I’ve Googled but didnt’ find out.

        • Submitted by RB Holbrook on 12/10/2013 - 09:49 am.

          1975

          The rule change was opposed bitterly, according to what I’ve heard, although Senators from both parties supported the change. The final vote (56-27) on the rule change was not taken until March of ’75.

    • Submitted by Paul Brandon on 12/09/2013 - 02:49 pm.

      And this of course

      is in the Constitution.
      You’ve raised this point before.
      It amounts to: let one party win the elections, then let them change the rules to suit their desires.
      I don’t see where allowing a bill to come to a vote is a power grab. On the other hand, allowing the minority to block a vote on a bill certainly is.
      As for the Texas GOP and redistricting, the timing was the least questionable part of the action.

    • Submitted by John Ellenbecker on 12/09/2013 - 06:45 pm.

      Senate rules were used to change the cloture rule – using the rules to change the rules is not a “wrong” – it is always right to live within the rules.

  8. Submitted by jason myron on 12/09/2013 - 01:30 pm.

    The 2014 elections?

    So, not only can they divine the will of the long dead founders , but also predict the outcome of elections that are a year away? As I recall, Mr. Tester had convinced himself of a sure victory on several fronts last November.

  9. Submitted by Paul Landskroener on 12/09/2013 - 02:52 pm.

    The unwritten rule

    The Senate’s covenant that provided the minority the opportunity to delay a hasty vote also has an unwritten component, namely that the minority must not use that power irresponsibly or capriciously, and to reserve it only for the most critical, most important issues. The Republican minority in the Senate violated this rule over and over and over again. They used it to delay votes on judicial confirmations, for example, even though there was no opposition to the underlying appointment.

    They also violated a second and perhaps more important unwritten component of the covenant, which is that in order for the fillibuster rule to make any civic sense at all, the minority has to bargain in good faith on bills that could gather a consensus; it wasn’t intended to completely disempower the majority. Remember that the Civil Rights Act of 1964 was largely written in the office of Rep. Minority Leader Everett Dirkeson in order to win enough Republican votes to pass. THOSE Republicans exercised the civic virtue that made the fillibuster acceptable.

    But when given that opportunity in 2009, the Democrats agreed to dozens and dozens of Republican-proposed amendments to the Affordable Care Act in hopes of attracting substantial Republican support (including the nutty amendent to make members of Congress and their staff give up their standard federal employee health insurance benefit), THESE Republicans pulled out the rug and not a one voted for the bill that had been changed as they had asked.

    As for calling the recent change to the rule a “power grab”, Sen. Reid had negotiated in good faith with Sen. McConnell about when the fillibuster would and would not be used, and McConnell broke his promises just months after making them. The Republicans are like the defendant who murdered his parents and then asked for mercy because he’s an orphan.

  10. Submitted by Ray Schoch on 12/09/2013 - 02:57 pm.

    Forces of reaction

    Back when I was a kid (think: Truman and Eisenhower), my neighborhood friends and I had a name for people who knew the facts, but proclaimed something else instead.

    Liar.

    Jason Lewis, at least in this instance, is a liar.

    Thanks, Eric, for pointing this out. A “founders’ intent” that dates from 1975 is… um… not a tradition. It’s a lie.

    Thanks also to Jason Myron for reminding us about Mr. Tester’s record as a prognosticator. It’s something to keep in mind.

    Over the course of the previous generation, most of what those who like to call themselves “conservative” have set out to do, or managed to actually put into policy, strikes me as blatantly antidemocratic. Whether it was voter suppression in the name of nonexistent voter fraud, doing everything they can to prevent a president and his political party (elected by a majority, after all) from carrying out policies upon which they campaigned, celebrating the SCOTUS decision that, at least in some circumstances, corporations are people, while simultaneously claiming that women, in some circumstances, ought not to have control over their own bodies and are thus, in those circumstances, *not* people, to insisting (sadly, with Democratic assistance), that a president need not seek a declaration of war to send troops to the other side of the world when there’s no direct threat to the United States, those who claim to be “conservative,” including Mr. Lewis, have largely advanced an agenda that, whatever its rhetoric, works to minimize the influence of citizens who are actual human beings, and thus the basic ingredients of the “democracy” that those who call themselves “conservative” profess to worship.

    They’re simply reactionaries, with most of the negative connotations that typically are associated with that term. Mr. Lewis’ lie isn’t even an especially noble one. It’s just political smoke.

  11. Submitted by Ron Gotzman on 12/09/2013 - 03:33 pm.

    majority rule?

    Eric – are you in favor of doing away with the 60 vote rule to cut off senate debate in all areas of Senate action – except for the areas designated by the constitution?

    • Submitted by Paul Brandon on 12/09/2013 - 07:11 pm.

      The issue here was not cutting off debate

      it was allowing a bill to get to the floor where it could be discussed.

  12. Submitted by Tim Ward on 12/09/2013 - 03:43 pm.

    Ignorance

    Jason Lewis is banking on the ignorance of the readers. He’s also not really trying to persuade anyone. He’s just throwing some red meat to the right winders. He knows that most people won’t do the research Eric has done.

    Well done, Eric.

  13. Submitted by Joel Stegner on 12/09/2013 - 03:58 pm.

    Tradition and Power

    Some of your readers argues that tradition is the biggest protection against power. Actually, tradition is a big protector of power. Traditional, old white males made all the major decisions in government, business, churches and practically all of society’s institutions. If you look at who is using the filibuster, it is old white conservative men, trying to hold on their privileges in a rapidly changing world. Obama wants to do his job – appoint judges. Republicans decided – we cannot let him do that. If he does his job without restriction, it will be more difficult for us to hold onto power, so they reinvent their jobs – from considering and passing legislation to standing in the way of all progress in our society. Getting people back to work in good jobs – not their problem. Making sure that kids are healthy, well edited and living in nurturing environments – let others handle that. Dealing with immigration – that can be handled later. As long as they hold onto their jobs, they will continue to feel successful and vindicated.

    • Submitted by Dennis Tester on 12/09/2013 - 06:47 pm.

      Ted Cruz

      is neither old nor white. You people need new memes.

      • Submitted by Rick Ryan on 12/10/2013 - 09:58 am.

        Cruz

        Ted Cruz is of Cuban/Spanish descent (certainly not Cuban/African, e.g. Tony Oliva) and was born in Canada. He has a Spanish surname but is far from being Latino.

  14. Submitted by Eric Black on 12/09/2013 - 04:08 pm.

    majority rule

    Responding to Ron Gotzman above: Yes, I favor allowing majority rule in all cases other than those with supermajorities required by the Constitution.

  15. Submitted by Neal Rovick on 12/09/2013 - 04:57 pm.

    As a party that is demographically moving into a non-majority role, is it any wonder that the fans of the current mode of Republicanism are on the forefront of the move to discard democracy?

    And who better to press into service than the long dead and ill-remembered “founding fathers”.

    I have no doubt that dismembering of the Roman Republic was accompanied by a lot of blather about the original intent of the founders of the republic.

  16. Submitted by Jeff Michaels on 12/09/2013 - 05:15 pm.

    Eric’s accuracy

    As long as accuracy is in question, let us take a look at Eric. Around paragraph nine, he mentioned that the main accomplishment of the filibuster rule was to enable “southern” senators to block all civil rights bills.

    Eric, if you check you will see those “southern” senators were also loyal and determined Democrats. This is a bit of history folks on the liberal side always have a very difficult time accepting.

    Eric, if you expect accuracy from others, you should practice it yourself.

    • Submitted by Alec Timmerman on 12/09/2013 - 07:10 pm.

      And th facts you choose to leave out….

      Jeff, you leave out a few pertinent facts yourself. All of those southern democrats were only such because Lincoln as a Republican and it would have been political suicide to identify as a Republican. Those southern Dems have zero to do with the modern party. That’s why it is not tally that big of a deal except for people trolling.

    • Submitted by Dan Hintz on 12/09/2013 - 08:23 pm.

      Eric’s Accuracy

      As someone who is not Eric Black, let me say that there is nothing remotely inaccurate about what Eric Black said.

      The folks on the liberal side (if I may speak for them) do understand that these were Democrats, but also understand that these southern senators were not liberals, at least on civil rights. The division in congress on this issue was much more about north and south than Democrats and Republicans. It should be noted that after the civil rights era, Southern Democrats either abandoned their racism (i.e. Robert Byrd) or kept their racism and became Republicans (i.e. Strom Thurmond).

    • Submitted by Logan Foreman on 12/09/2013 - 10:33 pm.

      What a joke

      The idea that the southern senators were “loyal and determined Democrats” is beyond stupid. HHH made the change in 1948. The “southern democrats” became republicans in the 1960’s. Read the history – the Democratic Party established civil rights. You and your ilk – prefer the 1850’s

  17. Submitted by Eric Black on 12/09/2013 - 06:21 pm.

    Eric’s accuracy

    Responding to Jeff Michael above: Yes, you are 100 percent right. The southern senators who used the filibuster (or threat of the filibuster) to block civil rights legislation for decades (until their own leader, Lyndon Johnson, became president and signed the major Civil Rights laws of the mid-60s) were Democrats. I don’t believe there is anything inaccurate about describing them as southerners, nor any secret agenda in describing them that way. The main point I was making is that those who want to glorify or preserve the filibuster should deal honestly with the causes it has served historically.

    • Submitted by Rachel Kahler on 12/09/2013 - 06:43 pm.

      Words

      There are liberals and there are democrats. They are not necessarily the same thing. One might argue that they aren’t the same thing, period. The thing about the English language, especially when it concerns politics, words can mean almost anything you want. If you think you gut punched anyone with the “oh, but those Southerners were Democrats!” bit, you’re sorely mistaken. Liberals call those Democrats “Blue Dogs.” While such a caucus didn’t technically exist in the time of the Civil Rights movement, they were the same creatures.

  18. Submitted by Jim Halonen on 12/09/2013 - 07:23 pm.

    Senate’s unique rules

    It seems the Senate’s rules are moving toward how the House operates. When shall we do away with either one of them and just do majority rule in one body? Perhaps there is good reason for one slow-moving body – no matter what party has the majority.

    • Submitted by Pat Berg on 12/10/2013 - 08:21 am.

      Different term lengths

      Senators are still elected every 6 years with staggered terms. That hasn’t changed, and will in itself tend to continue to cause it to be the more “deliberative” body of the two.

  19. Submitted by Charlie Quimby on 12/10/2013 - 12:34 am.

    Amazing that Lewis can write this tripe and continue to hold an editorial page position. You’d think the paper would look for someone better than the two conservatives they prop up there. But that shows the game is about eyeballs, not insight or accuracy.

    By the way, the state election of senators lasted because it was so much more convenient a way for the money men to buy senators. Much harder to fix a statewide election.

  20. Submitted by jason myron on 12/10/2013 - 03:17 pm.

    I’m still baffled

    as to why Lewis returned to Minnesota. After all, he was in North Carolina for three years, the GOP equivalent of Nirvana. Why would he return to rub shoulders with us pro-tax, anti-business, godless heathens?

    • Submitted by RB Holbrook on 12/10/2013 - 04:52 pm.

      Back to Minnesota

      Conservatives complain. Everyone is out to get them, everyone is picking on them, and everything is going in the wrong direction. Mr. Lewis is the embodiment of that principle. If he has nothing to kvetch about, what is left for him?

      • Submitted by Richard Helle on 12/11/2013 - 09:07 pm.

        what is left for him?

        Apparently it’s scamming the ignorant rubes into contributing to his new conservative Facebook movement.For 50 dollars you can be a founding member and if you convince friends and neighbors to join you get bonus bucks. At some point in time you can propose some action and something entirely undefinable will happen. Of course what’s really going to happen is this will die on the vine and a substantial pile of money will go to a few initial principles.

        • Submitted by Pat Berg on 12/12/2013 - 08:00 am.

          Pyramid scheme?

          Wouldn’t that be a pyramid scheme? I thought those were illegal.

          • Submitted by RB Holbrook on 12/12/2013 - 01:31 pm.

            Not a pyramid

            A pyramid promises money to the participants. here, they’re just getting the satisfaction of being part of something big and right.

            It’s legal, but Mr. Lewis is still a grifter.

  21. Submitted by John Hottinger on 12/13/2013 - 08:55 pm.

    Filibuster and Jason Lewis

    Jason Lewis knows he is primarily an entertainer and he does a good job of that, but thank you Eric Black for a sound thumping of the ridiculous “entertainment” Mr. Lewis spilled out in the Strib Sunday. At some point, I would think, some semblance of fact/argument checking by a paper might be a good idea.

    Balanced coverage does require acknowledgement of even the extremes, but there should be some protection of the reader when a claim — like the linkage of the 1970s filibuster to the fabled founding fathers — gets blithely thrown into a highlighted column that while subjective, should at least be based on some semblance of supportable thesis!

    Maybe in the future someone should attach a warning label to Mr. Lewis’ conservative constructs: “Reading This May Be Hazardous to Your Interpretation of What Really Happened.”

  22. Submitted by chuck turchick on 12/15/2013 - 05:16 pm.

    StarTribune fact checking

    A question not asked so far is: Why does the Strib print op-eds that are so lacking in the basic facts?

  23. Submitted by chuck turchick on 12/15/2013 - 05:18 pm.

    StarTribune fact checking

    My mistake. John Hottinger in the comment immediately before mine, made this point — and made it very well.

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