George F. Will: The filibuster stalker

Published: December 23, 2012

Under Senate rules, it takes 67 votes to change the rules. Reid, however, may decide that in January, on the first day of the new session, the supposedly “new” Senate can adopt new rules by a simple majority. This ignores the fact that the Senate, unlike the House, is a continuing body because, with staggered elections, no more than one-third of its members can be new — and not nearly that many ever are new — at any time.

The Senate can adopt new rules by a simple majority only by ignoring its long-standing rules. In the 2005 argument about filibustering judicial nominees, Sen. Joe Biden believed, or was told he believed, this “arrogance of power” ignored the fact that “the Senate is not meant to be a place of pure majoritarianism.”

Four House Democrats have asked a federal court to declare Senate filibusters unconstitutional. They say the supermajorities needed to end a filibuster infringes the principle of majority rule and dilutes the votes of members of the House. The court has many reasons, each sufficient, for refusing to so rule, including these two:

The Constitution says each house of Congress “may determine the rules of its proceedings.” Also, the Constitution requires of Congress six supermajorities (for ratifying treaties, proposing constitutional amendments for ratification, impeachment convictions, overriding vetoes, expelling members, and removing an incapacitated president who objects to removal). It is a perverse non sequitur to say that if the Constitution does not mandate a particular supermajority, it is impermissible.

Conservatives believe that 98 percent of good governance consists of stopping bad — meaning most — ideas. So conservatives can tolerate liberal filibusters more easily than liberals, who relish hyperkinetic government, can tolerate conservative filibusters. Come January, 21 of Reid's 55 Democrats will have come to the Senate in 2009 or later. They have never been in the minority. They must remember this: Some day they may be.

George Will's email address is georgewill@washpost.com.

WASHINGTON POST WRITERS GROUP