Yesterday Senate Republicans agreed not to filibuster seven Obama administration appointments and so averted a catastrophe whose gravity can be adequately conveyed only by reference to nuclear war. Or so it was widely reported. It was certainly a good day for Democrats and democrats: good to see the Senate majority finally press its advantage, good to see an obstructionist minority party get its bluff called.
But it might have been an even better day for small-d democrats if the Republicans hadn’t capitulated and the Democrats had gone ahead and killed the filibuster, if only for presidential appointments. Exercising the so-called nuclear option would not have meant the end of the Senate, much less the end of America as we know it. On the contrary, it would have been a small step further along toward the kind of government our Constitution promises: a representative democracy.
Tea Party types, who pretend to defend the founders’ original vision against the adulterations of liberalism, often claim that the United States is not a democracy but a republic. Don’t believe it. From the very start, our country has been a constitutional, representative democracy. (From the very start and, in fact, at the very start: the Constitution itself was ratified by state conventions elected directly by voters.) From the earliest days of the United States, self-government has been understood to mean that, while the civil rights of (at least some) minorities would be protected, the motive force of public policy would be majority rule.
This basic principle was always complicated by other considerations, many of them purely practical (hence the electoral college and the fact that every state, no matter its size, gets two senators: without the former, the slave states wouldn’t have signed on to the Constitution; without the latter, the smaller states wouldn’t have). The basic principle has also been compromised by various kinds of bigotry, which the country has had to outgrow or fight its way clear of. But despite the fact that many of our founders were deeply fearful of majoritarian excess, they settled on a system of government that finally depends for its legitimacy on the will of the majority.
Those who now counsel us against letting the upper house of Congress become too democratic are fond of quoting George Washington’s famous line about the Senate being the saucer that cools the tea. (The folks at NPR are also weirdly fond of this quote; someone there seems to bring it up every time there’s a complaint about obstructionism in the Senate). But the filibuster was never used in the Senate during Washington’s presidency—nor, indeed, during his lifetime. It was used for the first time in 1837, and throughout the nineteenth century and most of the twentieth it was generally considered an extreme and unscrupulous exploitation of the Senate rules permitting unlimited debate. The word itself reflects this disapproval: a filibusterer was originally a freebooter: “an adventurer who engages in a private military action in a foreign country” (American Heritage Dictionary).
Until 1975, this extreme tactic required extreme endurance; a filibusterer had to, well, filibuster. Huey Long famously held the floor for fifteen hours, reciting Shakespeare. In an effort to block passage of the Civil Rights Act of 1957, Strom Thurmond spent over twenty-four hours on the floor of the Senate, enough time for him to read the U.S. criminal code, the voting laws of all forty-eight states, and the Declaration of Independence, along with his grandmother’s biscuit recipe. Today the “virtual filibuster” allows senators to block legislation in absentia. You no longer need the daring of a pirate to pull off this act of procedural piracy. Except in a few rare cases (including Rand Paul’s recent bravura performance), the filibuster has lost whatever value it had as a dramatic stunt and become an effortless and routine trick to thwart the majority's agenda.
How routine? The only way to get around a filibuster—or head one off at the pass—is to vote for “cloture.” While a simple majority is sufficient to pass a piece of legislation or approve an appointment, cloture requires a supermajority: three-fifths of the Senate, or sixty votes. From 1917, the year the cloture rule was adopted, until 1970, there were never more than seven cloture votes in any term of Congress. In the 112th Congress (2011-2012), there were seventy-three. That means a filibuster, or the threat of one, had to be overcome seventy-three times before the Senate could do the people’s business. In effect, the majority now needs the permission of a minority to get anything important done.
This is not Constitutional, and it is clearly not democratic. The Constitution is explicit about the exceptional cases that ought to require anything more than a bare majority. It says you need a two-thirds vote to amend the Constitution or override a veto or convict a president in an impeachment trial precisely because it implies that you need only a majority to do other things. As Akhil Reed Amar has pointed out, here and elsewhere, supermajority requirements were always supposed to be an exception; majority rule was the rule. If our founders had reservations about majoritarian excess, they were much more worried about the consequences of requiring anything more than a majority to pass laws. Here’s what Alexander Hamilton had to say about it in The Federalist Papers No. 22:
This is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory. The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority.
Many would say that’s a pretty good description of the Republican strategy on Capitol Hill: embarrass the Obama administration, destroy the energy of the government so that citizens will expect it to fail and demand that it shrink, substitute the caprice of a corrupt junto, which, if it is not quite insignificant, is clearly out of step with most American voters on most important issues of public policy.
But this is not a partisan issue. The filibuster is no less undemocratic when it is used by Democrats. Republican majorities should also be allowed to proceed with their legislative agenda. (Wendy Davis is not my hero.) And Republican presidents should also get to appoint cabinet officials and agency heads so that they can exercise the powers the Constitution grants the executive branch of our federal government. Presidents shouldn’t have to pay some kind of political ranson to fill each vacancy. A minority party that disapproves of a federal agency’s entire function should not be able to paralyze that agency by refusing to allow an up-or-down vote on the person appointed to head it. Until yesterday, Senate Republicans had been blocking Richard Cordray’s appointment as director of the Consumer Financial Protection Bureau for the same reason they blocked Elizabeth Warren’s—not because either of them was unqualified by any reasonable measure but simply because the Republicans don’t want there to be a Consumer Financial Protection Bureau.
Democracies don’t always work: majorities sometimes make decisions that they or later majorities come to regret; elected representatives often fail to be truly representative. But democracies are, in principle at least, self-correcting. The best cure for legislative (or presidential) folly is an election, not a preemptive Supreme Court ruling that pretends to express a moral consensus better than the people’s elected representatives, and not the foot-dragging of a losing party that wishes it could just suspend government until it's back in control of it.
