Progressivism vs. the filibuster
By George F. Will
Published: Saturday, Dec. 22, 2012, 8:56 p.m.
When evaluating Senate Majority Leader Harry Reid's ideas for making the Senate more like the House, consider the source. Reid, D-Nev., is just a legislative mechanic trying to make Congress' machinery efficiently responsive to his party's progressivism.
Progressives think the “living” Constitution gives government powers sufficient for whatever its ambitions are, enabling it to respond quickly to clamorous majorities. Hence the progressive campaign to substantially weaken senators' ability to use filibusters to delay action.
In 1917, the Senate adopted the cloture rule whereby debate could be ended by a two-thirds majority vote. In 1975, the requirement was lowered to three-fifths. With another weakening of minority rights, the Senate will resemble the House, where the majority controls the process and the disregarded minority can only hope to one day become the majority and repay disregard in kind.
The point of progressivism is to progress up from the Founders' fetish with limiting government and restraining majorities. Hence progressives' animus against the filibuster.
Since there have been 50 states, Republicans have never had 60 senators. Democrats have had that many after 11 elections. Both parties are situational ethicists — in 2005, a GOP Senate majority threatened to forbid filibusters of judicial nominees during George W. Bush's administration. However, when filibusters impede the liberal agenda, excited editorials and solemn seminars deplore the “constitutional crisis” of a “dysfunctional Congress.”
Recourse to filibusters has increased with the 70 times Reid has used a parliamentary device (“filling the tree”) to limit and even deny the minority's right to offer amendments to legislation. Furthermore, 69 times Reid has bypassed committees, bringing bills written in private directly to the Senate floor without GOP participation. Progressives simultaneously complain about the filibuster, whereby the minority can give an overbearing majority incentive to compromise, and the absence of compromise.
Under Senate rules, it takes 67 votes to change the rules. Reid, however, may decide that in January, on the new session's first day, the “new” Senate can adopt new rules by a simple majority. This ignores the fact that the Senate, unlike the House, is a continuing body because, with staggered elections, no more than one-third of its members can be new at any time.
Four House Democrats have asked a federal court to declare Senate filibusters unconstitutional. They say the supermajority needed to end a filibuster infringes majority rule and dilutes House members' votes. The court has many sufficient reasons for refusing to so rule, including these two:
The Constitution says each house of Congress “may determine the rules of its proceedings.” Also, it requires of Congress six supermajorities (for ratifying treaties, proposing constitutional amendments for ratification, impeachment convictions, overriding vetoes, expelling members and removing an incapacitated president who objects). It is a perverse non sequitur to say that if the Constitution does not mandate a particular supermajority, it is impermissible.
Conservatives can tolerate liberal filibusters more easily than liberals, who relish hyperkinetic government, can tolerate conservative filibusters. Come January, 21 of Reid's 55 Democrats will have come to the Senate in 2009 or later. Never in the minority, they must remember this: Some day they may be.
George F. Will is a columnist for The Washington Post and Newsweek.
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