The Value of Keeping the Filibuster
Rep. Julio Gonzalez, M.D., J.D.
"Gridlock is the greatest protection to our personal liberties." Justice Clarence Thomas while addressing Stetson Law students.
With Congress's hyperpartisan posture and the small margins afforded in passing legislation through the Senate, interest has grown in doing away with the filibuster rule.
Because Senate rules require a greater than 60% vote to forcibly end a filibuster, a supermajority requirement is essentially invoked in order to pass a substantive bill out of the Senate. The difficulty in surmounting this hurdle has many lamenting the filibuster rule and wondering whether it's time to do away with the supermajority provision so that bills may be passed by a simple majority.
My answer to this suggestion is quite simple. No.
One of the great priorities of the Framers in designing the Constitution was the concept of separation of powers and the decentralization of authority. These are the principles that gave rise to the enumerated powers of the federal government and the creation of three co-equal branches of government. Even within the legislative branch, the plan was to maximize the tension between the chambers so as to elevate the hurdle to be cleared to successfully get a bill to the President's desk.
According to the Framers, the House of Representatives was designed to be the chamber of the people, reactive to its whims, and directly elected by the constituencies of the various districts. Towards that end, every member of the House of Representatives was subject to reelection every two years so that if Congress were to proceed in a direction contrary to the will of the people, the people themselves could forcibly and quickly effect a change in the direction of Congress.
The Senate was decidedly different as it was supposed to be the more seasoned, more stable chamber. For one, only one third of the Senate was to change hands each election cycle, that way, while the House could be subject to dramatic, biennial membership changes, the Senate could only change one third of its members at a time.
Second, the Senate was equal in representation of each state. This meant that while the number of members in the House of Representatives varied according to each state's population, the representation from amongst the various states was equally weighted. It also meant that each Senator was responsible for a much larger constituency, which would have a tempering effect on the Senator's views. While it is easy to take a hard right or hard left position when one represents a small geographic location with similar views, taking on a population as large as that of a state checks the breadth of a senator's views as the state as a whole can never be as radical as its most ardent congressional seat.
But there was another distinction to the Senate, and one that is arguably more influential upon its actions. In the Constitution's original incarnation, the members of the Senate were elected by each state's legislature. This was instrumental to defining the actions and the policies approved by the Senate since, under this scheme, the Senate was truly answerable to the States. One can scarcely imagine a Senator voting for imposing a funding mandate upon a state if that senator knew that his state legislature would be negatively impacted by his vote.
That all changed with the passage of the Seventeenth Amendment to the Constitution. As a result of the Seventeenth Amendment, senators were elected by a direct vote from the people of each state. Instantly, the Senate became less responsive to the state legislature and became decidedly more like the House of Representatives. As a result, it became a lot easier for a bill originating in the House of Representatives, namely the budget bill, to get passed out of the Senate.
Enter the filibuster. In light of the decreasing tensions between the two legislative chambers resulting from the ratification of the Seventeenth Amendment to the Constitution, it has become much easier for the federal government to pass laws. Power has been centralized, not decentralized, as the Framers had intended. The filibuster with its 60% plus one supermajority requirement in breaking it, although not constitutionally prescribed, imparts a difference in the inner workings of the two chambers that serves to increase the tension between the two chambers and decentralize power away from the House of Representatives. In so doing, our liberties stand a higher level of protection.
So, in light of the trend toward centralization of power brought to us through the actions of the Progressive wing of our political spectrum, should we encourage the Senate to do away with the filibuster rule?
The answer, clearly, is no.