Why Does Senator Sasse Wants to Keep the Filibuster?

How many of you have seen “Mr. Smith Goes to Washington?”. If you haven’t, you are without.

This Jimmy Stewart gem is a must-see for any political junkie like myself, and tells the story of a regular guy roped into running for office by a slick politician, then standing up against corruption once he got there. Because of Senate rules, he was able to hold up the government taking action on something that the corrupt politician’s party supported. The rule was the filibuster.

The filibuster rule is one that says you need 60 votes to accomplish anything in the 100 member Senate, or to at least debate it on the floor. With roots in the ancient Roman Senate, parliamentary rules were used by Cato the Younger to resist Julius Caesar’s autocratic methods by simply talking non-stop until it was dark and Senate business had to cease. It took hold in the United States in the early 1800’s and naturally evolved from the Founder’s intent to make the Senate move slowly.

Votes can pass by a simple majority, but one member – according to the rule – can hold up action on legislation if they feel it is harmful. Traditionally, Senators would have to stand to object, and stay standing, as they debated. Occasionally, a Senator could pass the baton to another colleague in their cause by “taking a question.”

Unfortunately, the filibuster has devolved over the years to be a political tool of opposition, where even the threat of one is enough to freeze business on a subject. Representatives in the House chide their colleagues, saying often, “the other party is the opposition; the Senate is the enemy.”

Over a year and a half ago, Senator Ben Sasse (R-NE) wrote an almost prophetic op-ed on the virtues of the Senate filibuster. While acknowledging the “frustrating” aspects of slow-moving government, and it’s abuse by minority parties, he gave readers a primer in why this is a good thing. Especially as conservatives.

After all, we were the minority party just two years ago, remember?

While the House of Representatives was designed by the Founders to reflect the democratic will of the people, representing smaller, disparate populations, and elected every two years, the Senate was intended to be the opposite.

James Madison recognized the historical nature of a pure democratic body, and wrote:

“The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies, to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders, into intemperate and pernicious resolutions.”

So, does removing the filibuster help in pursuing that goal?

Senator Sasse made the point that while progressives believe the government is the ultimate source of human wellness and societal improvement, conservatives are far more skeptical. We believe that government cannot accomplish either of those things as well as private individuals and organizations, and will always fail. It often creates new problems in addition to failing to solve the previous ones.

Therefore, we want government to struggle to act. And where it does, it should be as local as possible, right? This is the greatest value of a filibuster.

Right now, we stand in an awkward and maddening place between progressives briefly having a filibuster-proof Senate in 2009-’10 (seven months) and our current 53 vote majority. While most legislation can pass by a simple vote, the political mess and party division has created a dynamic that makes even that difficult to achieve, let alone the passive acceptance of a vote by seven Senators from the opposition party. The only answer on the most controversial topics would be to have a 60 vote majority.

Weren’t we grateful for this stopping most of President Obama’s and Senator Reid’s radical agenda after 2010?

In fact, it was this rule that held off for years the passage of things like the Federal Reserve Act in 1913 and the liberal court-packing attempted by Franklin D Roosevelt in the 30’s. The only reason Obamacare was passed in 2010 was because of a slim window where the Democrats had 60 votes to “reconcile” the House bill. So, it stands to reason we need the same threshold now to reverse it.

And yet, its the failure of the Obamacare repeal effort in the Senate that has some Republicans calling for the removal of the filibuster (a rule that itself only needs a majority to exist).

Senator Sasse makes a strong point for why this is more dangerous than letting Democrats have this power now.

“Progressives believe power—that is the government—is the center of life. We don’t. They place more faith in government than we do. They want to make it easier, more “efficient,” to grow the government. So making it easier for government to act when Republicans are in the majority might have consequences we will regret when we are next in the minority.

“Consider the three most consequential moments in the growth of federal power in the past century—the 1930s New Deal, the mid-1960s Great Society programs, and the first two years of this administration that brought us, among other things, ObamaCare. All occurred when Democrats had the White House, a majority in Congress and, crucially, supermajorities in the Senate. They could act unimpeded by a Republican minority.

“If Republicans eliminate the Senate’s supermajority requirements to pass bills in the name of efficiency, it will guarantee that every time Democrats have the presidency and even a bare majority in both houses of Congress, they will party like it’s 1936, 1965 and 2009. They will grow government, and there will be nothing conservatives can do about it.

“Imagine what Democratic majorities could do with no Senate filibuster: cap and trade, a national gun registry, federal abolition of state right-to-work laws, the abolition of secret-ballot union representation elections in favor of card checks, record tax increases. Everything would be in play. Such a Congress could tick off every box on Bernie Sanders’s wish list, and conservatives would have handed them the cudgel to do so.”

Now, do you still think we should get rid of it?

If you do, you’re not a thinking person.

That being said, Rep. Tom McClintock (R-CA) sees a better solution for reforming the modern filibuster rule without discarding it. He gave a speech earlier this year at Hillsdale College on the subject of reforming the rule, and I thought it was worth sharing some of it here.

Rep. McClintock says of the filibuster:

“This parliamentary principle assumes that there is an actual debate, that it is germane to the subject at hand, and that it is not conducted in a manifestly dilatory manner.

“Within a few decades of the American Founding, senators rediscovered Cato’s practice of killing a bill by killing time, and the Senate filibuster was born. Yet it was rarely used because of its natural limitations. A filibustering senator had to remain for the most part at his desk and on his feet.

“In 1908, for example, Sen Robert La Follette of Wisconsin held the floor for 18 hours—speaking for long periods of time, and demanding dozens of quorum calls and rollcall votes—to stall a banking reform bill. The bill eventually passed, but not without significant consternation on both sides, due to the fact that until the filibustered matter was disposed of, the Senate could not move on to other business.”

The intended use of the filibuster was watered down however, starting in 1917, when the Senate imposed a super-majority threshold called “cloture,” first set at two thirds (66 today), then three fifths as it is today. Debate could be ended if the supermajority wished to move on. This still seemed a reasonable, but needed reform in changing times. It still required the physical act of standing at your desk and speaking. The rule was only invoked 58 times between 1917 and 1970.

However, this is when the filibuster met it’s match: if you can’t beat it, beat it to death.

In 1970, Senate Majority Leader Senator Mike Mansfield (D-MT) changed the rules to allow a “two-track” system where filibustering is now a virtual act, able to be passed over so the Senate can move onto other business. As a result, filibusters increased from roughly one a year to 37 a year, with few resolutions. Over five years, the Senate gutted the rule to get more legislation passed. This means a bill can essentially be filibustered by the simple threat of one, rather than by the intended physical opposition of something. Whereas the purpose of the filibuster was to force a delay to debate something, the “two-track” rule eliminated debate, and codified partisan division.

A wise man once told me, “don’t air your grievances yet, unless you have a solution first.” So, here it is, as delivered again by Rep. McClintock.

First, the Senate should get rid of the two-track system that allows it to bypass a filibustered bill and reinstitute the pre-1970 requirement that filibusterers hold the floor.

Second, the Senate should restore the parliamentary principle that debate must be germane to the pending piece of legislation. (Sorry Ted, no more Green Eggs & Ham. But I’m sure you’d find a way.)

Rep. McClintock provided three additional suggestions (which can be read in full here), but I believe these two would restore the dignity of the filibuster while resolving some of the legitimate concerns of do-nothing politics. The only reform I would add is unlikely, but equally important, in my view: repealing the 17th amendment. I discuss that in more detail HERE.

So in closing, yes, the level of resistance by the Democrat Party is incredibly stupid right now, but they viewed ours the same way just a few years ago. This is the way government works, and as Sen Sasse pointed out, that’s the way we should WANT it to work. To fix it, we should follow the advice of Rep. McClintock and get rid of the “two-track” filibuster process and send Mr. Smith back to Washington the way he should be.

Meanwhile, we should keep making America great on the local level while the feds play with political fidget spinners. That’s how it was supposed to be anyway.

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