An Odd Number for Democracy

If anyone has ever actually rolled over in his grave, than Ted Kennedy just rolled over in his. Last Tuesday, Republicans took back a Senate seat that had been deprived them for 57 years in what is being called the greatest upset in Massachusetts’ history. Senator-Elect Brown ran an earnest and dedicated campaign, and made it clear that he saw the seat as a privileged to be earned. To the voters, it looked too much like Martha Coakley saw the seat as a gift to be bequeathed. The results were splashed in newspaper headlines around the world. After it was all over, the atmosphere was festive at the Brown campaign’s election night party. Supporters laughed and talked, sang and chanted, “Brown,” and “Yes We Can,” and “41.”

But 41 is a strange number for a democracy. Someone less familiar with the intricacies of our federal system might be excused for wondering what good a minority of Senators could do in what is primarily a majoritarian system. The particular rule at issue in this case is, of course, the filibuster, which can fairly be described as a well-established one procedural maneuver. It is meant to be an important tool for the minority in preventing egregious overreaching by the majority. But is that he role it plays today?

In its beginnings in the 1850s, the filibuster was meant to ensure that each Senator could have his full say on whatever issue was facing the chamber. Although the House had approved time restrictions years before, it was decided that in the Senate, the more deliberative body, each Senator should have as much time as needed to expound their views and attempt to sway their colleagues. As time progressed, the filibuster became less a tool to explain the benefits of particular legislation and more a means of demonstrating outright opposition. For example, in the 1950s Strom Thurmond froze Senate business for more than 24 hours in order to rail against the Civil Rights Act of 1957. Senator Thurmond wasn’t filling the time with reasoned debate--opting instead to read phone books and the rules of card games--but he stood before his colleagues and objected. Since 1972, however, not even this has been required. Since the advent of Senate Rule 22, Senators may file objections procedurally and need not present objections or, indeed, even be present. The threat is often enough. Neither voice nor body is required to bring the business of the Senate to a grinding halt.

Despite this deterioration in its use, some surely still believe that the filibuster provides a vital measure of protection to the minority party. It has certainly played that role in the past. If we observe its use more recently, however, we can discern a clear trend. To wit, we find that while the filibuster was once used a dozen times a decade, it is now used a dozen times a year.

To some, this abrupt upswing might serve to prove how radical and outlandish recent administrations have been. To others, it might only serve as another sad reminder of how bitterly divided our national politics have become. But whatever the cause, the filibuster cannot provide the answer. A tool meant to operate only in extraordinary circumstances cannot function properly when everything is extraordinary. Abusing the filibuster in this way erodes the people’s faith in the basic premises of our system of government. For while it is true that we can not allow the majority to abuse the minority, neither can we allow the minority to use the protections we afford it to routinely thwart the will of the majority, the adherence to which forms the very basis of our system of government.

Nor would ending the filibuster leave the minority party defenseless. Even suggesting that might be the case gives too little credit to both the ways in which minority legislators can kill legislation by other means and the ways they can impact it through clever public relations work, hard bargaining, and block voting. In short, minority party Senators will still have all the protection their own advocacy can give. Beyond that, minority Senators can surely expect to find solace through the ballot box. Any party that truly overreaches will face the umbrage of the voters in the next election cycle and, if they lose severely enough, might well be on the receiving end of the same abuse they perpetrated against their colleagues. That possibility alone should be sufficient to curb legislative overreaching.

Perhaps most important of all is that now is the perfect time to act. Although the 2010 midterms are still some time off, if Senator-Elect Brown’s election is any indication, a more equal distribution of seats in both the House and the Senate is likely. After that, each party will have to have faith in the campaigning abilities of their fellow party members, just as, once elected, the will have to have faith in their party members ability to effect the direction of opposing legislation without resort to the filibuster. And democracy will be the better for it.