Wednesday, December 7, 2011

Federalist 58: Filibusters suck

It's true that when America adopted its Constitution, the Founders who wrote the Federalist Papers didn't put much—any—effort into defending the filibuster tactic that is so widely used in today's Senate. Why? Well, the Constitution itself didn't mention the filibuster: That's something the Senate decided, on its own, to allow in the rules.

Still, while reading Federalist 58, it's pretty easy to see what the Founders would've thought about the filibuster: They wouldn't have liked it. We can surmise as much when James Madison grapples with whether the Constitution should've required much more than a quorum for the House of Representatives to vote on weighty matters. Madison didn't like the burden that would create. Why? It would enable a minority of Congressmen to block legislation simply by not showing up:
It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale. 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. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences.
Some of my conservative friends defend the filibuster as a minority legislative defense against the tyranny of the majority. But it's pretty clear the Founders—or at least Madison—weren't interested in giving the minority the power to block legislation, seeing it as a reversal of "the fundamental principle of free government."

Combine this with Federalist 22, in which Alexander Hamilton railed against the idea that two-thirds of Americans would "submit their interests to the management and disposal of one third"—roughly the ratio needed for the Senate to sustain a filibuster—and it's sure seems clear the practice is both undemocratic and a betrayal of the Founders' vision.

A conservative friend says I may modify my position on this when I read further into the Federalists. Right now, though, the filibuster isn't really faring well.

1 comment:

Notorious Ph.D. said...

An interesting and possibly related point: The founders consciously based the legislative system and all those checks and balances on the government of the Roman Republic, precisely in order to prevent change from happening too quickly. I have always seen the founders, like the Roman senators and tribunes and such, as essentially conservative, in the literal sense of that word: that government should only be changed with the greatest of effort, and should resist radical policies from any side (look at the fate of the Gracchi if you want to see what happened to radical social reformers).

As a bit of a radical myself, reading about this deliberate conservatism (again, meant literally) often makes me squirm with impatience. I'm sure that some more radical reformers on the other side of the political spectrum feel the same frustration. On the other hand, a set of policies meant to block action that can't get significant agreement has its wisdom.

(I was about to add some caveat about how this doesn't work as well for us as for the Romans because of the influence of moneyed interests... but then I remembered what I know about the Romans' own dirty tricks.)