37. The Filibuster: Time To End It?
No bipartisan commission to investigate the events of January 6. No discussion, even, of laws to protect voting. Has the time come to end minority rule in the U.S. Senate?
Yes. And the founding fathers would approve. James Madison, principal architect of the Constitution, wrote that in requiring a super-majority to pass laws, "the fundamental principle of free government would be reversed. It would no longer be the majority that would rule; the power would be transferred to the minority."
Perspective No. 1, the very first bleat in this format, asked whether the filibuster was, as Mitch McConnell claims, a crafty move by founding fathers to prevent hasty legislation. It was not. The Constitution says that both Houses of Congress require a simple majority to do business.
So how did minority rule in the Senate come about? It was the rather accidental result of a suggestion by Vice President Aaron Burr, in 1805, to get rid of superfluous Senate rules, including the one for closing debate.
As anyone who has seen "Hamilton" can testify, Burr didn't represent the best wisdom of his time. But even then the absence of a rule for ending debate, lying around like a loaded gun, was not actually used to stall Senate business until 1837!
And the filibuster (from a Dutch term for "free-booter," one who wages irregular warfare) wasn't used often until the Jim Crow era, when it became the desperate defense of racial injustice in the American South. Not a great pedigree.
A rule to close debate was finally adopted in 1917, when the filibuster threatened war efforts. But it required a super-majority of two-thirds, reduced in 1975 to three-fifths -- 60 of the current 100 Senators.
Since then pieces of the filibuster have been chipped away. In 1974 budget reconciliation was adopted as an end run around the filibuster -- since government cannot function very well without a budget.
In 2013 Democrats used the "nuclear option" to end the filibuster on most presidential appointments, since otherwise a president's power to appoint becomes meaningless. In 2017 Republicans themselves extended this to the most important nominations of all: the Supreme Court.
It has been suggested that the next step in "chipping away" would be to free laws on voting -- the basic attribute of democracy -- from the threat of filibuster by a minority.
But it would be much better to simply restore majority rule, as envisioned by the authors of the Constitution and as practiced by most other democracies.
Mitch McConnell has threatened a "Scorched-earth" response if the sacrosanct filibuster is touched. Hell, Mitch, "scorched earth" is pretty much what you've given us anyway.