Far from necessary, the filibuster is extraneous. Everything it is said to encourage — debate, deliberation, consensus building — is already accomplished by the structure of the chamber itself, insofar as it happens at all.

In the form it takes today, the filibuster doesn’t make the Senate work the way the framers intended. Instead, it makes the Senate a nearly insurmountable obstacle to most legislative business. And that, in turn, has made Congress inert and dysfunctional to the point of disrupting the constitutional balance of power. Legislation that deserves a debate never reaches the floor; coalitions that could form never get off the ground.

In quoting Madison, McConnell frames the filibuster as part of our constitutional inheritance. It is not. The filibuster isn’t in the Constitution. The Senate, like the House of Representatives, was meant to run on majority rule.

Remember, the framers had direct experience with supermajority government. Under the Articles of Confederation, each state had equal representation and it took a two-thirds vote of the states for Congress to exercise its enumerated powers. Without the consent of nine states (out of 13), Congress could not enter treaties, appropriate funds or borrow money. And the bar to amendment, unanimity, was even higher. The articles were such a disaster that, rather than try to amend them, a group of influential elites decided to scrap them altogether.

For a taste of this frustration, read Alexander Hamilton in Federalist no. 22, which contains a fierce condemnation of supermajority rule as it was under the articles:

The necessity of unanimity in public bodies, or of something approaching toward 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.

Hamilton is especially angry with the effect of the supermajority requirement on governance.

In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.

Delegates to the constitutional convention considered and rejected supermajority requirements for navigation acts (concerning ships and shipping), regulation of interstate commerce and the raising of armies. Majorities would have the final say everywhere except for treaties, amendments and conviction in an impeachment trial.

To make the Senate slow-moving and deliberative, the framers would not raise barriers to action so much as they would insulate the body from short-term democratic accountability. That meant indirect election by state legislatures, staggered terms of six years and a small membership of two senators per state. And at ratification, that is where the Senate stood: a self-consciously aristocratic body meant to check the House of Representatives and oversee the executive branch, confirming its appointments and ratifying its foreign agreements.

The filibuster doesn’t enter the picture until years later, as an accident of parliamentary bookkeeping. In 1806, on the advice of Vice President Aaron Burr (who thought it redundant), the Senate dropped the “previous question” — a motion to end debate and bring an item up for immediate vote — from its rules. Without a motion to call the previous question, however, an individual senator could, in theory, hold the floor indefinitely.

Source link