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Save the filibuster

Philip Klein at the Washington Examiner makes the conservative case for the filibuster. He correctly says that the (extra-constitutional) filibuster is clearly constitutional, that the framers wanted to protect political minorities by making it difficult for majorities to act rapidly, and that they were right to do so.

Whether Klein is correct to claim that the framers wanted to protect “the rights of smaller states” is a more complicated question. The small states, which were disproportionately powerful under the government of the time, demanded and received disproportionate influence under the Constitution, against the wishes of (big-stater) James Madison. I don’t think states have rights at all, and I doubt states even have interests as such. Nonetheless, decentralizing power within the Senate does help protect very real geographically concentrated interests, and that is consistent with the thinking of the framers.

Klein argues that the increase in filibusters over the last several decades is a function of a stronger federal government. That might be a minor contributing cause, but not the main one. Partisan polarization and strong parties are more important. So is the evolution of democratic thought. Jacksonians and Progressives were majoritarians, and Progressives in particular dominate much of American political culture. Their influence makes it difficult for many people to understand democracy as anything but the process of enacting whatever gets the most votes, as opposed to a Madisonian rule of all citizens, not just the majority. And another important development has been the Newt Gingrich-inspired rejection of norms for short-term advantage.

Klein also brings up an interesting question: If Republicans had eliminated the judicial filibuster during George W. Bush’s presidency, would Democrats have transformed the Senate into a House-like chamber ruled by the majority party once Barack Obama was elected? I think that would have been more likely to happen. After all, Republicans are tempted to eliminate legislative filibusters now because they believe Democrats would do the same if they “needed” to in the future. Indeed, Republican threats to do away with the supermajority requirement to end filibsuters in 2005 (sparked by Democratic ratcheting up of filibusters against appellate nominees) probably made it easier for Democrats to actually take that step in 2013.

Because both sides have shattered the norms of the Senate, the only way to save the filibuster over the long term is to reform it, with buy-in from both parties for procedures that protect minority parties and individual senators without turning the Senate into a dictatorship of the minority party. This Congress should be a rare opportunity to find a consensus. But that doesn’t seem in the cards.

Jonathan Bernstein is a Bloomberg View columnist covering U.S. politics.

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