Senate on a slippery path with filibuster change

The manufactured crisis last week that led to extraordinary, unprecedented change to the filibuster, prompted by Majority Leader Harry Reid (D-NV) and Senate Democrats, is the first step down a road that undermines the nature of the chamber and will, almost certainly, lead to bigger changes.

The Senate was meant to be the more prestigious body of Congress and its members, given six-year terms, were selected to be responsive to state interests in Washington. Members of the House of Representatives, on the other hand, were meant to serve as the voices of the people, subject to re-election every two years.

Contrary to what President Obama said in his statement after the filibuster change, that “if you got a majority of folks who believe in something, then it should be able to pass,” the upper chamber was never meant to serve as a “voice of the people,” nor was meant to rubber stamp majoritarian views or interest.

It was meant, as James Madison once said, “to consist in its proceedings with more coolness, with more system and with more wisdom, than the popular branch.” Passing legislation and approving nominees based on consensus. The filibuster — which has existed as a concept since the chamber was created and in practice since 1837 — was a tool to achieve consensus.

But, over time, the Senate has become more and more like the House, beginning in 1913 with the ratification of the Seventeenth Amendment, which mandated direct election of senators by voters in their respective states.

The Founding Fathers were concerned about a legislative branch that was too responsive to the whims of majority views, which could potentially be dangerous to essential liberty. In Federalist 10, Madison warned about the problem of faction.

“By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community,” wrote Madison, the “Father of the Constitution.”

“There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects,” he added.

Though Federalist 10 was more a warning about political parties, something that the Founding Fathers wanted to avoid, and spoke to the republican structure of the government, the Madison’s essay was prescient. He warned against the chaos of a “pure democracy,” which, he explained, was “incompatible with personal security or the rights of property.”

What’s more, Madison wrote, democracies “have in general been as short in their lives as they have been violent in their deaths.”

While the Constitution is an imperfect document written by fallible men, it was constructed in a way to provide for thoughtful governance that protected the rights and liberties of the people. This is why the document was based on republican principles and, explicitly, guarantees Americans “a republican form of government.”

Unfortunately, Reid, with the blessing of the White House, has put the chamber on an even more precarious, slippery course that makes future changes to the filibuster an inevitability. Sen. Carl Levin (D-MI) warned his colleagues of the danger in a speech last week, in which he tried to reason with members of his party.

“Let’s not kid ourselves,” said Levin. “The fact that we changed the rules today just to apply to judges and executive nominations does not mean the same precedent won’t be used tomorrow or the next year or the year after to provide for the end of a filibuster on legislation, on bills that are before us, and on amendments.”

Republicans have a decent chance of taking control of the Senate next year. Though such a move to eliminate the filibuster for legislation would be ill-advised, given that President Obama can veto measure, the precedent has been set. And, perhaps, further changes to the rules won’t stop at legislation.

There could be as a many as four Supreme Court vacancies in the coming years. The recent changes to the filibuster may not apply to nominees to the high court, but that, too, is an obvious step forward.

If Republicans do take control of the chamber next year and maintain their majority into 2017 and have, say, a President Chris Christie, for example; what’s to keep them from further changing the rules to eliminate the filibuster to prevent Democrats from blocking a nominee who would overturn Roe v. Wade.

Republicans should restore the filibuster, if and when they take control of the chamber. Preserving the republican, consensus-based structure of the chamber would be the right thing to do. But gamesmanship and the increasingly contentious relationship between party leaders has all but guaranteed that the incremental consolidation of political power will continue.


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