October 22, 2010

Talking out the filibuster

There is a case to make for the Senate's majority rule barriers

When dealing with Congress, complaints about obstructionism in the Senate in general and the filibuster in particular are never far from the headlines. When there was talk of Republicans filibustering congressional Democrats’ health-care reform bill last January, Ben Eidelson of Slate Magazine lamented, “The filibuster undermines the democratic principle of majority rule and compounds the unrepresentative character of the Senate’s design.” When Republicans held Congressional majorities they had no use for this venerable tool of the United States Senate and wanted to do away with it on judicial nominations. The beauty of the filibuster is that it is completely in accord with the sagacious nature of the Senate, as envisioned by the Framers, and its very wisdom is in its ability to prevent the passage of bad laws. Opposition to the filibuster is, in the words of the late Senator Byrd, “essentially, opposition to the Senate.”

The Framers certainly did not believe that the Senate should be nearly as susceptible to the fluctuations of democracy as in the House. James Madison said as much in his “Federalist 63,” where he elaborated on how it should be the more aristocratic, stable, and prudential of the two legislative bodies. The Senate would “serve as a check on the people, since, although during most times their will is just, they too are subject to the [periodic] infection of violent passions.”

The idea behind this was that we could limit the sins of our democratic tendencies by having a deliberative body that had more permanence and longevity than the House, and would therefore be shielded from the temptation to legislate while beholden to popular opinion. Because they only faced reelection every six years, Senators would not easily succumb to the mob-like nature of democracy. At the same time, because this was far from a lifetime appointment and their election was not a permanent one, they were still held accountable for their actions.

It is one of the great insights of our Constitution that we magnificently distribute differing levels of democracy among branches of the federal government, with everything from the explicitly democratic House to the appointed terms of the Supreme Court. The U.S. Senate falls nicely between these two poles. The Senate’s age minimum of 30 years further illustrates the gravity of the job it is supposed to do. Madison, in “Federalist 62,” justified this arrangement by arguing that the “senatorial trust” necessitated a “greater extent of information and stability of character.” The combination of the greater experience of the senators and the length of their terms shields them from the tumult of public opinion, which brusquely falls in and out of love with policy ideas without consideration.

It is why the move to the direct election of senators, culminating in the Seventeenth Amendment to the United States Constitution, was a nobly misguided venture to further democratize our one true republican institution. The idea behind it was good enough: the old way of choosing senators­—selection by the state legislature—promoted corruption and created a protected political class alienated from the citizenry. The easiest way to hold Senators accountable and to keep them in touch with the people would be to move the electoral powers away from legislators and toward the public.

The problem with this was that it radically weakened the footing on which the Senate rested, and further weakened the power of the state’s political apparatus to influence national politics. Having senators elected from the state legislature allowed the decentralization of political decision-making in the federal government; the Senate, by its very nature, was a product of the unique relationship between individual states and the federal government. The state legislatures forced the senators they selected to actively represent the best interests of their respective states in the Senate: The political class had a far greater control over the Senator, and can therefore ensure that his vote would be in the best interest of his state, and not just in accord with the whims of an impassioned public.

The idea behind having the state legislators select senators was also that they would choose men of exemplary character and conscience; because they were selected rather than elected, the senators ability to fire up the passions of the people would have no bearing on their longevity. The more superficial aspects of politicking would be pushed aside for more consequential and relevant facets of statecraft. Senators would moderate the fiery passions of democracy and provide the necessary permanence and discretion any competent legislative process needs. Consider the types of men who were senators before the passage of the Seventeenth Amendment. Henry Clay, Daniel Webster, John C. Calhoun, Stephen Douglas, Henry Cabot Lodge, and Elihu Root were all men of exemplary intellect and character. Root and Lodge, members of the last class of senators before the passage of the Seventeenth Amendment, published their arguments against its passage in the pages of the leading scholarly journals of their day. These are men who would be sorely out of place in our modern, more democratic Senate.

I recognize that proposals to revoke the Seventeenth Amendment are simply unfathomable: The Seventeenth Amendment was passed as a result of how corrupt and how far removed from thte ideals of our Framers the Senate had become. I hope this will remind us all of the important non-democratic role the United States Senate plays, and that the vestiges of its original conceptualization and more modern reinforcements of that same mentality—like the filibuster—are crucial to the continued thriving of our nation. The Senate must be the ultimate bulwark against bad laws. As James Madison said in “Federalist 73,” “It may perhaps be said that the power of preventing bad laws includes that of preventing good ones; and may be used to the one purpose as well as to the other. But this objection will have little weight with those who can properly estimate the mischiefs of that inconstancy and mutability in the laws, which form the greatest blemish in the character and genius of our governments…. The injury which may possibly be done by defeating a few good laws, will be amply compensated by the advantage of preventing a number of bad ones.”

Ultimately, if the Senate is to be set anything more than just a smaller House, it must be a strong bulwark against base majoritarianism. Even if we cannot repeal the Seventeenth Amendment, we must at least keep the spirit of the Senate the same as it has always been, and try not to change it too much.

Joshua Lerner is a third-year in the College majoring in Political Science.