George F. Will: The filibuster stalker

Published: December 23, 2012
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Ideas are not responsible for the people who believe them, but when evaluating Senate Majority Leader Harry Reid's ideas for making the Senate more like the House of Representatives, consider the source. Reid is just a legislative mechanic trying to make Congress' machinery efficiently responsive to his party's progressivism. And proper progressives think the Constitution, understood as a charter of limited government, is unconstitutional.

They think the “living” Constitution gives government powers sufficient for whatever its ambitions are, enabling it to respond quickly to clamorous majorities. Hence the progressive campaign to substantially weaken the ability of senators to use filibusters to delay action.

Until 1917, it was generally impossible to stop extended Senate debates. Then — during the administration of Woodrow Wilson, the Democrats' first progressive president — the Senate adopted the cloture rule whereby debate could be ended by a two-thirds majority vote. In 1975, the requirement was lowered to three-fifths. If there is now another weakening of minority rights, particularly by a change brought about by breaking Senate rules, the Senate will resemble the House. There the majority controls the process and the disregarded minority can only hope to one day become the majority and repay disregard in kind.

Wilson was the first president to criticize the American founding, which he did because the Constitution bristles with delaying and blocking mechanisms, especially the separation of powers. The point of progressivism, say its adherents, is to progress up from the Founders' fetish with limiting government and restraining majorities. Hence progressives' animus against the filibuster, which protects minority rights by allowing for the measurement of intensity as well as mere numbers.

Since there have been 50 states, Republicans have never had 60 senators. Democrats have had that many after 11 elections. Both parties are situational ethicists regarding the filibuster — in 2005, a Republican Senate majority threatened to forbid filibusters of judicial nominees during George W. Bush's administration. It is, however, when filibusters impede the liberal agenda that excited editorials are written and solemn seminars are convened to deplore the “constitutional crisis” of a “dysfunctional Congress.”

Recourse to filibusters has increased in tandem with, and partly because of, the 70 times Reid has used a parliamentary device (“filling the tree”) to limit and even deny the minority's right to offer amendments to legislation. Furthermore, 69 times Reid has bypassed committees, bringing bills written in private directly to the Senate floor without any Republican participation. The filibuster is a means whereby the minority can give an overbearing majority an incentive to compromise. Yet progressives simultaneously complain about the filibuster and the absence of compromise.



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