In his recent Wall Street Journal op-ed, “America Needs the Filibuster,” former Sen. Ben Sasse argues the filibuster “provides a bulwark against consolidated power.”
asserted
filibuster → need → power
Later, he states the filibuster rule, “plays a critical role in limiting and dividing power …
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rule → state → power
the filibuster safeguards the spirit of the Constitution’s anticonsolidation objective.”
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filibuster → safeguard → objective
The truth is, if the filibuster rule were included in the Constitution, it would have undermined the republican form of government the Framers created.
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Framers → include → government
The filibuster rule undermines majority rule
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rule → undermine → rule
In Federalist 22, Alexander Hamilton described “the fundamental maxim of republican form of government … that the sense of the majority should prevail.”
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sense → describe → majority
The filibuster rule, through its creation of a supermajority 60-vote cloture requirement, blocking a bill’s passage when supported by a majority, frustrates that “fundamental maxim.”
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blocking → block → maxim
The 60-vote supermajority cloture requirement creates a veto power for up to 9 members of the minority party (depending on the size of the majority).
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requirement → create → majority
The rationale for this approach is similar to the use of supermajorities in the failed Articles of Confederation (Articles) — the governing document that preceded the Constitution.
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that → fail → Constitution
Drawing on his experience under the Articles, Alexander Hamilton, in Federalist 22, characterized the use of supermajorities as “poison.”
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Hamilton → draw → poison
He said, “To give a minority a negative upon the majority … is in its tendency to subject the sense of a greater number to that of the lesser number,” and serves to “destroy the energy of 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.”
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give → say → majority
He warned that when national action was needed, if a stubborn minority can “controul the opinion of a majority” regarding the best way of conducting business, “the majority in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will over-rule that of the greater,” leading to “tedious delays” and “contemptible compromises of the public good.”
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sense → warn → good
The effect of supermajorities Hamilton was describing is indistinguishable from the effect of the supermajority cloture vote requirement of the filibuster rule.
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Hamilton → describe → rule
It takes control from the majority and gives it to a few in the minority.
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It → take → minority
The filibuster rule distorts constitutional design
The Founders designed regular business to be determined by a majority vote in both chambers under Article 1, Section V of the Constitution, providing “a majority of each shall constitute a quorum to do business.”
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majority → distort → business
They also restricted the use of supermajorities to extraordinary circumstances: overriding vetoes, treaties, convictions in impeachment trials, constitutional amendments, and expelling members from Congress.
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They → restrict → Congress
In U.S. v. Ballin (1892), importers challenged a federal statute’s validity, arguing that it was improperly passed by the House because the Speaker counted nonvoting members present in the chamber in establishing a quorum under a House Rule.
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Speaker → challenge → Rule
In rejecting the claim, the Supreme Court explained:
“When a majority are present the house [is] in a position to do business.
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house → reject → business
Its capacity to transact business is then established, created by the mere presence of a majority, and does not depend upon the disposition or assent or action of any single member or fraction of the majority present.”
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capacity → transact → majority
Ballin is clear that the mere presence of a majority establishes the authority of a chamber of Congress to conduct business, notwithstanding the lack of approval from any fraction of its members.
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presence → establish → members
The filibuster rules’ 60-vote cloture threshold blocking the action of a majority directly conflicts with the Constitution’s grant of authority.
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threshold → block → authority
The Constitution was meticulously designed to separate the powers of the federal government and carry out the fundamental maxim of majority rule, as Hamilton described.
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Hamilton → design → rule
The Constitution separates federal powers among our three branches of government: Executive, legislative, and judicial.
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Constitution → separate → government
In Federalist 48, James Madison cautioned:
“It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it …
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it → caution → it
a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”
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which → lead → hands
Regarding the legislative branch, Madison warned: “The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.”
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department → regard → vortex
Indeed, we see with the filibuster rule, it has had a deleterious and destabilizing effect on Congress.
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it → see → Congress
The House derives its powers from the people.
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House → derive → people
Its membership is based on population, with Representatives serving two-year terms.
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Representatives → base → terms
The Senate’s membership consists of two senators per state — each having six-year terms.
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membership → consist → terms
The Senate derives its powers from the states, as political and coequal societies.
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Senate → derive → societies
It was designed to provide stability, due deliberation, and to protect smaller states.
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It → design → states
Speaking of this design, Justice Joseph Story wrote in his classic Commentaries on the Constitution of the United States, “No system could, in this respect, be more admirably contrived to ensure due deliberation and inquiry, and just results in all matters of legislation.”
It must be remembered that Hamilton and Madison were seeing the effects of supermajorities from the standpoint of the unicameral (single-chamber) legislature created by the Articles.
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Hamilton → speak → Articles
The filibuster rule’s grant of its veto power in the Senate adds another adverse impact on a bicameral legislature, precisely because the power shifted to the minority now rests in one chamber of Congress, and has destabilized the coequal balance between the two chambers.
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power → add → chambers
A small minority block of one chamber can stop the action of both chambers.
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block → stop → chambers
The House is subordinated to the Senate, and at a permanent disadvantage.
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House → subordinate → disadvantage
The disparity of power is such that the operation of Congress more closely resembles a unicameral legislature, rather than the Framers’ bicameral design.
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operation → resemble → design
The subordination of the House to the Senate also means the people are subordinated to the states.
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people → mean → states
Their connection to Congress is lost, and held hostage by a small block of the minority in a single chamber, who are generally opposed to their interests in a chamber that is not designed to represent the people’s individual interests.
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that → lose → interests
The Senate’s failure to pass the SAVE America Act — which requires photo ID and proof of citizenship to vote, supported by 83% of Americans according to Gallup polls — is one example of the disconnect between the people and the Senate and, by extension, Congress.
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which → pass → extension
…and 13 more, not listed.
The Aporia
