September 02, 2017 at 9:49 pm | By FRANK MIELE
First of all, let’s get it straight. There is no such thing as filibuster in the United States Constitution.
The notion that this was an invention of the Founding Fathers is just wishful thinking by senators who want to give their shameless power grab the imprimatur of legitimacy.
Actually, the Constitution provides that a simple majority in both the House and Senate is sufficient to do business. We know that was the plan because the authors of the Constitution spelled out only a handful of circumstances when a super-majority would be required such as ratifying treaties.
In Federalist Paper No. 58, James Madison spelled out exactly why a super-majority was the wrong idea for a republic:
“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.”
He goes on to say that creating this new power would allow “an interested minority” to take advantage of it “to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences.”
It should also be noted that until 1970, a filibuster shut down the work of the Senate entirely, and thus could only be sustained in the most dire of circumstances. There was too much work to get done to be able to allow one particular bill to gum up the works. But thanks to Montana Sen. Mike Mansfield and West Virginia Senator Robert Byrd, a two-track system was put in place that allowed other business to be carried on while the filibuster was taking place. This meant the obstructionists did not have to bear the political heat for their actions any longer.
Moreover, in Federalist No. 22, Alexander Hamilton said the super-majority requirement (which existed in the Article of Confederation) was damaging to the nation as a whole. “The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority.”
He summed it up that “The public business must, in some way or other, go forward.”
Yet today, against the advice of both Madison and Hamilton, we have the super-majority in the Senate, and the public’s business is stymied, stifled, and stagnated. Instead of the wisdom of Madison and Hamilton, we are following the folly of Chuck Schumer and Mitch McConnell. The country is at risk, and all our fine senators can do about it is defend their political turf.
There is one voice arguing against the filibuster — President Donald Trump. Using his much condemned Twitter account and political rallies, the president has made his case that the filibuster is preventing reforms the country desperately needs.
When the Senate failed to pass the Obamacare repeal in July, Trump tweeted, “The very outdated filibuster rule must go. Budget reconciliation is killing Rs in the Senate. Mitch M, go to 51 votes NOW and WIN. IT’S TIME!”
Then last week, Trump tweeted, “If Senate Republicans don’t get rid of the Filibuster Rule and go to a 51% majority, few bills will be passed. 8 Dems control the Senate!”
Indeed.
The Senate, which was once know as the “greatest deliberative body in the world” is rapidly becoming the greatest obstructionist body in the world. Senate Republican millionaires and Senate Democrat millionaires seem content to sit on their sacred fortunes while their honor and their countrymen’s lives are sacrificed to the whims of lobbyists, special interests and campaign donors.
Everyone understands that the Democrats, Never Trump Republicans and the rest of the swamp creatures want to “embarrass the administration,” as Hamilton so wisely predicted more than 200 years ago, but if you want to know why Trump got elected in the first place, just look to Congress and its abysmal record for action.
In my research for this column, I found an unexpected ally in the fight to end the filibuster. Former Democratic Congressman Pat Williams, who served nine terms in the U.S. House of Representatives and actually got things done when he was in office, wrote a column in 2009 in which he lamented “the tyranny of the minority” that was caused by the filibuster.
Williams was writing about the ability of 40 senators to stop “health care reform” under President Obama, just the opposite of President Trump’s concern about the failure of repeal, but the underlying issue is the same. As Williams put it, “A crucible of our brand of democracy is the will of the majority shall prevail. … Filibusters have become a perversion of the American promise of both majority rule and minority protection.”
Don’t be fooled by Sen. Foghorn Leghorn (er, I mean Sen. McConnell) blathering on about the time-honored traditions of the Senate. Harry Reid dumped the filibuster for lesser court appointments a few years ago, and McConnell ended the filibuster for Supreme Court nominees this year. Face it, senators don’t do what’s right; they do what gets them re-elected. As for time-honored traditions, the only time our kleptocratic senators honor tradition today is when it pays. As Rep. Williams points out in his 2009 column, the word filibuster originally meant pirate. Apparently it still does.
Frank Miele is managing editor of the Daily Inter Lake in Kalispell, Montana. Send email to edit@dailyinterlake.com.
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