Last week Common Cause filed a lawsuit to end the filibuster rule in the U.S. Senate. The filibuster has been a growing problem in the past 40 years, and has really gotten out of hand the past decade. The Senate’s filibuster rule is one of the major problems ruining our unique American “republican democracy.”
The filibuster has become so abused that it has become the standard operating procedure in the Senate, the new de facto process for how a bill becomes a law. The threat of 41 votes is enough to defeat any bill. This means Senators of any 21 states representing as little as 11 percent of the population (in fact, elected by even fewer people) can block action supported by the majority.
Although Harry Reid recently hinted he would now be in favor of it, filibuster reform from within the Senate seems to be a lost cause. They keep the filibuster rule out of fear of what the other side would do if they captured the majority. (Who would have thought someone named Harry Reid would have such an empty sack?)
If a law has the support of a majority of the people’s representatives, unless it falls into one of the categories where the Constitution requires more, it should pass. A republic based on representation of the people relies on majority rule. Think about it. We don’t hold elections this way. If a candidate gets 51% of the vote, he wins. Nobody would tell him, “Sorry, 49% voted for the other guy. You can’t go to Washington.”
Some idiot will come back and say that there’s no mention of “majority rule” in the constitution. Majority rule is such a basic asumption of representative bodies and principle of democratic republics that it didn’t need to be expressly stated in the constitution. Next, you’ll tell me that dead men can serve in Congress, because the constitution does not expressly state a living persons requirement in the qualifications clauses. (Also opens the door to corporate persons serving in Congress. Hello, Senator Wal-mart!)
“No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.”
Do you really want to see a “Weekend at Bernie’s 3″ starring the corpses of Senators Byrd and Thurmond propped up on the floor of the Senate? The Court should probably enact an “It’s obvious, you idiot!” doctrine.
The filibuster has become a way for one of the parties to try to cheat their way out of a minority status. Listen: You lost; deal with it. Here’s how: Spend the next two years saying “we told you so” every time the opposition passes a law you can’t stand. If a majority of the public thinks the legislation is as egregious as you do, then you will win the election, take back the majority, and get a chance to implement your own asinine plans. Eventually, after a few terms of back-and-forth control, America might reach an equilibrium of good governance. Who knows? Stranger things have happened.
Whether the Common Cause lawsuit can succeed is unclear. Certainly there is a legitimate legal theory supporting their position. Check out this article. There’s a good chance that the court will duck the issue using a weak “political question” doctrine reasoning. Of course, a lot will depend on the particular judge and the timing. Conservative partisans (as opposed to those that are actually primarily loyal to the text) would kick this case to the curb if it comes up with the Democratic Party holding the majority in the Senate. If the majority switches hands, they will suddenly see the light. Many so-called liberal judges would probably also take a similar partisan approach. (You can see that I no longer have much faith in the existence of an intellectually honest judiciary.)
If filibuster reform is attempted again via the Senate rule-making process they should try on this creative compromise: if you are going to let them usurp popular sovereignty, make them sacrifice some dignity. Turn the filibuster into a silly-buster. The senator would be required to actually speak and must dress up as a famous clown. You could read the phone book as Krusty, Bozo, Ronald McDonald, or Red Skelton. If you want to make a mockery of American Democracy, it should make a mockery of you. There will be no exception for dressing as a mime (to get out of speaking) or wearing a suit claiming to be dressed as Glen Beck (who famously referred to himself as a clown).