Say it Loud--But Not Too Long

Being in the minority is tough. Being in the minority in a legislature is tougher still. Being in the minority and relying on emotional appeal, redistribution of wealth, a warped sense of social justice and being totally lacking in hope for a better position in the foreseeable future must be a stone-cold bitch. That’s where the Democrats appear to be these days. They don’t have many new ideas and even if they did, they’d have less than the proverbial snowball’s chance to get them enacted into policy. So, they resort to being the party of anti-ism. They are against things. Somehow trying to simultaneously obstruct every proposal put forth by the current administration and at the same time convert your nom de guerre from “liberal” to “progressive” seems a bit incongruous.

So, we’ve got the Senate dust-up regarding judicial appointments and filibustering to prevent a straight majority vote. We’ve got the main-stream media (you know who you are) tossing in the frightening concept of the “Nuclear Option” as if it were some sort of cataclysmic Armageddon for nation and the total failure of bipartisan deterrence. There seems to be little in the way of comity in the upper house of the legislature these days and virtually anyone who is offered a senior level Presidential appointment can expect to come away from the process not with new found respect and responsibility but with a total destruction of their reputation, whether or not they deserve it.

What do we know so far? Well, let’s approach the question constitutionally. Is the filibuster Constitutional? Sure. While it isn’t specifically addressed, there is authority for the legislative chambers to set their own rules for debate. Historically both houses had unlimited debate, however when the House of Representatives grew as states entered the union it became necessary to establish time limits on speeches in the larger body. But, we can probably agree that the Senate can allow longer speaking periods.

The Senate rules have changed over time also. Procedures to cut off debate are a logical outgrowth of any legislative body. And, the Constitution does provide for a super-majority in many situations. So, still no problem there. In fact, when the process for cloture was established with a super-majority, the criterion was initially a two-thirds vote. In more recent times that has been reduced to three-fifths. So, we also see a precedent allowing changes in filibuster and cloture rules. Maybe the “nuclear” option is more like a lady-finger with regard to Senate rules.

But, why filibuster in the first place? Isn’t democracy supposed to get decisions made that meet the desires of the electorate? And, doesn’t a majority in the legislature reflect the policy preferences of the majority of the people? Absolutely! The glitch is that occasionally the people need to be made aware of a situation so that they may chime in with their preferences and let their representatives know what they want done. Hence, the filibuster as a means to delay action long enough for the grass-roots movement to take hold and get the necessary feed-back to the decision-makers. Slow down the process so that they people can speak.

There is another aspect in play here. That is the power of the Senate to “advise and consent” to Executive branch appointments. This is a critical check on the power of the President. With regard to judicial appointments, the Senate has the role of providing advice to the big guy on who they think would make a good judge or justice of the Supreme Court. They can vet a list of candidates and help the President find qualified persons. Then, when the appointment is made, the Senate can certify the qualifications to insure we don’t have simply a collection of good ol’ boys or political cronies ruling in our courts. Does that extend to the authority to deny approval to anyone whose ideology they disagree with? Actually, it does. Does it extend to the authority to deny a public vote of the Senate on an appointment despite the fact that a majority of the elected members of the chamber representing their constituencies would approve? Arguably no.

While a filibuster might be a good thing in bringing controversial legislative proposals to the attention of the electorate, it is increasingly apparent that it is becoming a bad thing when it comes to confounding the power of the administration to enact the policies that the majority of the electorate indicates a desire for. The confirmation process should be a substantive discussion of qualification for a job, not a public pillorying of a candidate. It should be conducted with courtesy and respect in a professional manner, not as a platform for accusation, innuendo and political posturing. Once all sides have had an opportunity to discuss qualification, the process should be completed with a vote of the entire chamber either up or down. To delay or deny that vote, or to require a super-majority to reach the point of that vote is an injustice.

Changing the rules of the senate is nowhere near a “nuclear” move. It’s simply recognition that the needs of the nation will be better served by a process that reflects an opportunity for the wishes of the majority to be enacted.