At the core of Bondurant’s argument is a very simple claim: This isn’t what the Founders intended. The historical record is clear on that fact. The framers debated requiring a supermajority in Congress to pass anything. But they rejected that idea.
In Federalist 22, Alexander Hamilton savaged the idea of a supermajority Congress, writing that “its real operation is to embarrass the administration, to destroy the energy of government and to substitute the pleasure, caprice or artifices of an insignificant, turbulent or corrupt junta, to the regular deliberations and decisions of a respectable majority.”
In Federal 58, James Madison wasn’t much kinder to the concept. “In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule; the power would be transferred to the minority.”
Alexander Hamilton and James Madison were Founders for those keeping score at home. Conservatives claim to love and revere the Founders except for all those times when they disagree with them, or when it is inconvenient. The good news is that if the Republicans ever retake the Senate (a very real possibility) the Founders’ arguments against the filibuster will once again be considered compelling to conservatives. Principle!
The use of the filibuster has risen to ridiculous levels with the Republicans in the minority. This is not a case of “both sides do it” no matter how hard Republicans try to pretend that it is. (And they do. It’s hilarious. “Remember Bork!”) The numbers are just insane.
Between 1840 and 1900 there were 16 filibusters. Between 2009 and 2010 there were 130.
So now you routinely hear about legislation that Obama wants passed being “defeated by a vote of 52-48” or something. That sounds like 52 “Nay” votes, doesn’t it? No, those are 52 votes to pass, but with the Republicans filibustering everything, it takes 60 votes to do anything in the Senate. This is not what the Founders intended, and we should change it.
Conservatives will argue that Democrats would do the same thing if they were in the minority, completely ignoring the history of Democrats in the minority not filibustering everything. Conservatives will also suggest that I would feel different if the Republicans take over the Senate this November.
You know what? Bring it. Let’s do away with the filibuster and let the Senate work how the Founders intended, no matter who takes control in November. If the Republicans want to use their slim majority to abolish Social Security and Medicare, let them. They’ll never win another election again. Let’s do this.
If the Democrats keep the Senate, let’s actually start passing some real-life liberal policy. I’m on board.
I don’t expect that this law suit by Common Cause will succeed. But Senate Majority Leader Harry Reid has shown signs recently that he is willing to change the filibuster rules, which the Senate can do at the beginning of the next session. Apparently Reid has had enough. It’s long past due.