March 30 2017
George Will writes that the coming confirmation of Judge Neil Gorsuch will improve the Supreme Court and that the Democrats' "incontinent opposition" to Judge Gorsuch will improve the Senate--if the Republicans dare to reform the filibuster.
Will urges that, in the likely event that eight Democrats can't be found to bring the nomination to a vote, Republicans "go beyond extending to Supreme Court nominees the prohibition of filibusters concerning other judicial nominees" and reform the filibuster by rectifying a mistake that was made 47 years ago.
There was no cloture rule in the Senate until March 1917. Cloture was adopted after a filibuster had prevented an important bill from being passed. Previously, there was no limit on Senate debate. In 1970, Senator Mike Mansfield, a Democrat from Montana, made it easier by inventing the "two track" system: instead of being stuck by a genuine filibuster, the Senate could set aside a filibustered bill and move on to other business.
This made a filibuster easy:
Hitherto, filibustering senators had to hold the floor, testing their stamina and inconveniencing everyone else to encourage the majority to compromise. In the 52 years after 1917, there were only 58 cloture motions filed; in the 46 years since 1970 there have been 1,700.
Will cites a piece by Tom McClintock, a conservative California Republican, who, writing in Hillsdale College's Imprimis, notices that the filibuster was meant to give a "significant minority" the right to extend and thus deepen the debate. However, after 1970, “the mere threat of a filibuster suffices to kill a bill as the Senate shrugs and goes on to other business.” Relying on McClintock, Will goes on:
McClintock urges the Senate to make a “motion to proceed” to consideration of a bill undebatable and hence immune to filibustering: “Great debates should be had on great matters — but not great debates on whether to debate.” And he says the Senate should abandon the two-track system. This would prevent the Senate from conducting other business during a filibuster but would require filibusterers to hold the floor. As he says, it was this mutual inconvenience that, between 1917 and 1970, made filibusters rare and that intensified the pressure to resolve the impasse by way of compromise.
As a result of today’s Senate paralysis, McClintock says, “The atrophy of the legislative branch drives a corresponding hypertrophy of the executive branch.” The promiscuous use of faux filibusters — requiring 60 votes to proceed with consideration of, or votes on, ordinary legislation — blurs the implicit constitutional principle that extraordinary majorities are required only for extraordinary matters, such as proposing constitutional amendments, overriding vetoes, and ratifying treaties. The trivialization of filibusters — no longer requiring them to be strenuous and disruptive events — has deprived them of dignity. Restoring them to what they were would affirm the principle that majoritarianism — simply counting numbers, government by adding machine — should be tempered by a reformed filibuster as a mechanism for measuring the intensity of a minority’s opposition to a majority position.
The Constitution affirms the power of each house of Congress to “determine the rules of its proceedings,” so any Senate procedures are compatible with the Constitution’s text. But the practices made possible by the post-1970 rules have contributed to institutional disequilibrium, destabilizing the Constitution’s design by inciting a dangerous expansion of presidential power.
Hence Georgetown law professor Randy Barnett and The Weekly Standard’s Jay Cost urge forbidding filibusters of appropriations bills: Democrats have discovered that if they block individual appropriations bills, the entire operation of government will inevitably be rolled into an omnibus appropriations bill, and the majority must either accept it in toto or face a partial shutdown of the government. This maneuver has largely eliminated Congress’s ability to discipline the executive via line-item spending cuts.
Certainly the filibuster fits a non-majoritarian institution in which 585,501 Wyomingites have as much representation as do 39,250,017 Californians. Besides, filibusters delay but do not defeat political processes: Can anyone name anything that a majority of Americans have desired, strongly and protractedly, that has been denied to them because of a filibuster?
Unfortunately, no reform can make the Democrats' incontinent rage turn into an ability to join the GOP in debate of important issues. But not allowing an E-Z filibuster to distort Senate processes might help restore the possibility of debate. Not that I'd relish the prospect of Senator Schumer's talking throughout the night--or maybe I do. It would be interesting for the American people to watch--and maybe like Huey Long, who like most filibusterersof old padded his filibuster with lists and such, he'd give us some recipes.