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November 23, 2013 7:30 AM Why the Filibuster Had to Go

By Martin Longman

In the lead-up to Harry Reid’s decision to invoke the “nuclear option,” some Republican senators like Richard Burr of North Carolina and Chuck Grassley of Iowa made remarks that could only be interpreted as goading the Majority Leader on. It got to the point that Brian Beutler began openly speculating that the Republicans secretly wanted Reid to do their dirty work for them.

But, once the deed was done, their tune changed dramatically. Sen. Lamar Alexander (R-TN) sounded apoplectic:

“This is the most important and most dangerous restructuring of Senate rules since Thomas Jefferson wrote them at the beginning of our country,” Sen. Lamar Alexander (R-Tenn.) said. “It’s another raw exercise of political power to permit the majority to do anything it wants, whenever it wants to do it.”

That led me to write a piece called The Founding Fathers Didn’t Filibuster, in which I revisited Alexander Hamilton’s Federalist No. 22. It also led me to revisit Thomas Jefferson’s A MANUAL OF PARLIAMENTARY PRACTICE: for the Use of the Senate of the United States. Mr. Jefferson wrote the manual during the time that he served as vice-president of the United States and presided over the Senate.

Near the beginning of the manual, Jefferson discussed the importance of rules and customs in parliamentary bodies. What he had to say is quite interesting, and I think it can be used to indict the Republicans for abusing the filibuster and breaking a long-standing norm of behavior in the Senate, but it can also be used to indict the Democrats for changing the rules in the middle of the game.

IMPORTANCE OF RULES.
SEC. I
THE IMPORTANCE OF ADHERING TO RULES.
MR. ONSLOW, the ablest among the Speakers of the House of Commons, used to say, ‘it was a maxim he had often heard, when he was a young man, from old and experienced members, that nothing tended more to throw power into the hands of administration and those who acted with the majority of the House of Commons, than a neglect of, or departure from, the rules of proceeding: that these forms, as instituted by our ancestors, operated as a check and controul on the actions of the majority; and that they were in many instances, a shelter and protection to the minority, against the attempts of power.’ So far the maxim is certainly true, and is founded in good sense, that as it is always in the power of the majority, by their numbers, to stop any improper measures proposed on the part of their opponents, the only weapons by which the minority can defend themselves against similar attempts from those in power, are the forms and rules of proceeding which have been adopted as they were found necessary from time to time, and are become the law of the House; by a strict adherence to which, the weaker party can only be protected from those irregularities and abuses which these forms were intended to check, and which the wantonness of power is but too often apt to suggest to large and successful majorities. 2 Hats. 171, 172.
And whether these forms be in all cases the most rational or not, is really not of so great importance. It is much more material that there should be a rule to go by, than what that rule is; that there may be an uniformity of proceeding in business, not subject to the caprice of the Speaker, or captiousness of the members. It is very material that order, decency and regularity, be preserved in a dignified public body. 2 Hats. 149.
And in 1698 the Lords say, “the reasonableness of what is desired is never considered by us, for we are bound to consider nothing but what is usual. Matters of form are essential to government, and ‘tis of consequence to be in the right. All the reason for forms is custom, and the law of forms is practice; and reason is quite out of doors. Some particular customs may not be grounded on reason, and no good account can be given of them; and yet many nations are zealous for them; and Englishmen are as zealous as any others to pursue their old forms and methods.” 4 Hats. 258.

Obviously, the Democrats did not change the rules lightly, and only made the move with the greatest reluctance. What informed their decision was less Jefferson’s advice than Hamilton’s:

To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser.… The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the 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.
In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, 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 overrule that of the greater, and give a tone to the national proceedings.
Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy.

The recent government shutdown was a near-perfect example of “things…not admit[ting] of accommodation.” So, too, was the serial rejection (without cause) of three straight nominations to the DC Circuit of Appeal by the Senate Republicans.

And, so, two principles came into conflict. One was Jefferson’s observation that the Senate should operate with “an uniformity of proceeding in business, not subject to the caprice of the Speaker [Majority Leader],” and the other, Hamilton’s insistence that “The public business must, in some way or other, go forward.”

To state this more expansively, for five years, the minority’s “real operation [has been] to embarrass the administration, to destroy the energy of the 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.”

And this is why the filibuster had to go.

Martin Longman is the Web Editor for the Washington Monthly and the main blogger at Booman Tribune. He has worked as a community organizer for ACORN/Project Vote and as a political consultant for Democracy for America.

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