More on the Nature of Filibuster

A Red Mind In A Blue State asks:

“I'm still waiting for somebody to explain to me (in simple terms, please) why the fillibuster should be allowed to exist in a democracy? If the Constitution impliedly requires a majority vote (which I assume it does, as the rare occassions requiring 2/3rds are clearly delineated--and judicial nominations do NOT require 2/3, though some might believe that it should) then why should a minority be allowed to force a supermajority vote on any issue?”

I never have understood that. Teach me, somebody, please.

Dear “Red Mind Blue State”

The simple answer:

United States Constitution. Article I Section V Paragraph 2.

"Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member."

I guess the filibuster counts as a rule of its proceedings.

The longer answer (although, I hope, still simple) goes something like this:

We are not in a democracy, we are in a federal republic. It gets more "democratic" all the time, and it is the mix of a changing system that leads to the confusion. Of course, as all “red state” people know – the media has caused this confusion about the nature of democracy, especially Hollywood movies extolling the virtues of democracy. Before Hollywood movies, no one ever had false hopes about the nature of democracy. In fact, before Hollywood movies, there were no problems at all!

Anyway, we're back at States Rights again, and whether Federalism actually means anything.

Filibuster is one of the devices used to make sure that States in the minority are not being rolled by States in the majority, and it is a device used to make sure that states with weird policies -- say, slavery or sharecropping or health coverage for workers or child labor laws or gambling or abortion or medicinal marijuana -- do not completely lose their integrity as states.

As I have been saying for years, States Rights is an argument made by losers. Now that Red Staters are on the winning side, they have forgotten everything they learned from Strom Thurmond about the sanctity of States Rights.

The broader question is not why we need a filibuster in a democracy, but why we need a Senate in a democracy. Cooler heads with longer terms prevailing is an after-the-fact reason. It may be true as an historic coincidence, and it may have even been a reason trotted out at the time that direct election of Senators was adopted (17th Amendment – 1913 – about the time movies were becoming popular --- hmmm), but it wasn’t the reason that the Senate was created by the Framers.

Originally, the purpose of the Senate was to safeguard the interests of States as States. State legislatures elected the Senators, and individuals (those troublesome 14th Amendment constructs) were not involved at all. The Senate is completely a function of States Rights (or, as it came to be played out, protecting slavery and the railroads, and in later years, protecting Jim Crow and corporatism). If the purpose of the Senate is to protect each State’s interests, then the States should have special privileges to prevent passage of what they perceive as hostile Federal intrusion. The filibuster is one way to preserve those privileges.

Since Allan Keyes was losing in Illinois anyway, a portion of his recent campaign called for a repeal of the 17th Amendment. It has been rumored (and it makes sense) that Justice Scalia has called for a reappraisal of the 17th Amendment, in passing, in speeches on other topics. If the State legislatures elected the Senate, like back in the old days, you red-staters wouldn’t be having all your fancy pants notions about democracy and the will of the people.

More seriously, and in fairness to the argument, if people elected House members directly, and United States Senators indirectly, people may take their roles as citizens of individual states more seriously. Maybe they would be more inclined to clean up the cesspool that is Albany, where thousands of people are dining off the taxpayer nickel, and only 3 people (well 6 if you include typists) are doing any real work. More likely, indirect election of U.S. Senators will lead us back to what it used to be -- Senators who owe their jobs to state legislators, who in turn will owe their jobs to the large corporate interests in their individual states. I would use words like "corrupt" and "conflict of interest," but back in those days, it was more accepted (or maybe it wasn't more accepted and that is why there is a 17th Amendment -- perhaps someone could tell me)

(As a note about the only topic I know even a little about – the 1850s --- the Lincoln/ Douglas debates were not really about a U.S. Senate election, but about persuading people in Illinois to vote for the local State assembly people who would in turn vote either Lincoln or Douglas into the Senate. As normally happens, in Illinois in 1858, the popular vote total of the liberal Republican candidate did not translate into the same percentage of liberal Republican state legislature seats. Conservative gerrymandering -- actually, it was more like the Illinois legislature refusal to redistrict based on updated census figures to account for the growth of cities like Chicago -- probably cost Lincoln his Senate seat. Unlike these times, nobody cried about it. Everyone understood it was the way things were.)

Another short answer to the question of why we still have a Senate, with filibuster rules, is that for every random nutjob judge that you lose, you gain 2 additional electoral college votes for the 6 sheep living in Dick Cheney's Wyoming --- not to mention all the Homeland Security and Mass Transit funding that must be divided "equally" for each of the 50 states.

I haven't done the math, or seen the math, but it won't take too long, and I'll try to do it this week -- If you kept the Electoral College "winner take all" formula, but eliminated the 2 additional votes that states like Wyoming and South Dakota get for "their Senators," the electoral college vote would be really close and nobody would be talking about Bush mandates.

By the way, Senator Frist doesn’t want to repeal the filibuster rules. He only wants them repealed for right-wing nutjob judicial appointments. Frist still wants them in place on any topic on which he may need a filibuster. It’s just another example of wanting it both ways – and perhaps having the power to make it stick. Now that we blue state people have rediscovered the glories of Federalism, I look forward to us adopting the cry for term limits of Senators without law degrees!