Tyranny of the filibuster?
The New Republic carried an article last month arguing that there exists a realistic way to get the Senate to abolish the filibuster. Taking a page from John Rawls’ “veil of ignorance” principal, which states that people should choose just moral rules as if they have no knowledge of how they would be effected by the chosen rules, author Nicholas Stephanopoulos argues that the Senate should pass a law today to ban the filibuster in the future. Since there is no way to know which party would be in the majority in, say, seven years, senators would not know how the rule would affect themselves or their party (satisfying the Rawlsian test). And political self-interest could stop being an excuse for keeping the filibuster in place, as the current majority may very well be the minority in 2017 (satisfying the political feasibility test).
As Stephanopoulos writes:
A debate now on whether to eliminate the filibuster in the future would transform senators’ decision-making calculus. The key questions would no longer be whether they enjoy the personal clout conferred by the filibuster, or whether it advances or threatens their parties’ agendas. The issues, instead, would be whether it makes sense for almost all Senate business to require a supermajority.
Implicit in Stephanopoulos’ argument is that it does not in fact make sense for Senate votes to require a 60-person majority. But why not? Stephanopoulos claims that the filibuster has halted policy reforms that a majority of the country favors, including recent cap-and-trade legislation and the public option in health care reform. This is certainly true but, again, is it necessarily wrong?
The filibuster has played an important role in U.S. legislative history, preventing Alexis de Tocqueville’s fear of democracy descending into tyranny of the majority. But by effectively requiring 60 votes for anything to pass in the Senate it has created something else as well – the tyranny of the status quo.
Saving a discussion of democratic theory for later, I want to raise just a few intuitive problems I have with simple majority rules democracy.
Democracy, the saying goes, is about reflecting the will of the people. But what is the “will of the people”? And what about a 50.1-49.9 split suggests that the majority reflects this will? Suppose one group enjoys a stable (uncontestable) and lengthy period as a 50.1% majority. If this majority can do most anything they want, then how is the situation for the 49.9% minority any different than living under a dictator? Now you one might argue that a filibuster-type rule is no better, for all it does is make the “will of the people” require a 60% supermajority. And this would be correct. But while there will inevitably be a simple majority on any given vote, a supermajority only occurs when there is a higher level of consensus. Sure, 60% is an arbitrary threshold; maybe it should be higher. But the principal stands: is it really ok that 50.1% of the country should be able to tell 49.9% that its tax dollars and reputation should be spent on a war or health care reform that the minority vehemently opposes? And if not, how do we walk the line of preventing tyranny of the majority while avoiding tyranny of the status quo?
-Marc
Photo by Flickr user Rob Crawley used under a Creative Commons Attribution license.
Related posts:
- How many votes should be required to pass bills in the Senate?
- Congress – run by the minority?
- The founders and the filibuster
- Politicians and party
- Democracy, what is it good for?
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I’m all about preserving the filibuster- as long as we go back to the old rules, where debate is finished when people stop speaking. The present 60 vote threshold is increasingly absurd as dems hold up their own party. Not only are they holding their own party hostage, they’re further institutionalizing this 60 vote threshold.
I don’t believe legislators should necessarily vote along party lines, but when it comes to procedural votes, such as ending debate, there should be party unity, at a minimum, and basic rules of collegiality the ultimate goal, regardless of who is in control of the Senate.