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INDEPENDENT COUNTRY
The Irony of the Filibuster
Democrats love government but do not want it staffed.

by James Leroy Wilson
March 10, 2005

In the United States Senate, any Senator who has been recognized to speak can speak for as long as he likes, on any topic. I do not know when this tradition came about, but we should remember that in the beginning of the Union there were just 13 states and 26 Senators, all appointed by state legislatures. Because of the small numbers, small size of the country, and limited powers of the federal government, the Senate could afford lengthy deliberations. Especially since they didn’t have to spend time raising money for their re-election campaigns.

Another privilege of holding the floor is that a Senator would recognize the next speaker. As partisan divisions intensified, a Senator of one political party who sought to delay or kill off a vote would hold the floor for as long as he could talk, then give the floor to a fellow partisan who would talk for as long as possible, and so on. The entire business of the Senate would come to a halt. This is what is called a filibuster.

There is, however, one way to get around a filibuster. Another Senator can move that the “debate,” that is, the filibuster, come to an end by bringing the bill to a vote. This is called cloture. A filibuster ends if 60% of Senators vote for cloture.

The filibuster is one of the great internal checks in Congress. It prevents partisan majorities from running roughshod over the minority. Throughout much of our history, the majority party has rarely held 60% of the seats; today’s 55-45 division is far closer to average. The filibuster encourages compromise; it forces at least some accommodation to the minority party’s views and interests.

In an age in which one party controls both houses of Congress and the White House, Congress is often little more than a rubber stamp for the President. Minority opposition in the Senate is one of the last remaining safeguards of our liberties and pocketbooks. In the 1993-94 term, when Democrats controlled the government, it was Republican Minority Leader Bob Dole who de-railed much of Bill Clinton’s big-government agenda, including Hillarycare.

A 60% majority is far more convincing than 51%. It is the marker that designates a “clear” majority. If the minority can sustain a filibuster, the bill either will not pass, or compromise legislation acceptable to both parties is in order. The size and scope of government today is bad, but without the filibuster, it would be far worse. Senates with 51-49 majorities could generally have their way, and the minority party would be helpless.

But the filibuster isn’t used just for legislation. This power is also used to sabotage one of the Senate’s Constitutional roles. From Article IV, Section 2, of the Constitution:

[The President] shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

How many nominations and confirmations does the this entail? There are nearly 200 ambassadors alone that require confirmation. Beyond that, the actual numbers of executive and judicial appointments do not have to be as large as they are, as only Supreme Court and Cabinet department heads seem to be required for Senate confirmation according to the Constitution. As it is, with the size and scope of government today, Senate ends up confirming many hundreds of judges and Administration officials. And the Senate minority is capable of filibustering each and every one.

Is this a bad thing? Senator Robert Byrd doesn’t think so. In a recent speech, reacting to (seemingly half-hearted and aborted) attempts by Majority Leader Bill Frist to use the “nuclear option” and use procedural rules to force votes on Presidential judicial nominees, Byrd invoked history and tradition to praise the filibuster:

Free and open debate on the Senate floor ensures citizens a say in their government. The American people are heard, through their Senator, before their money is spent, before their civil liberties are curtailed, or before a judicial nominee is confirmed for a lifetime appointment. We are the guardians, the stewards, the protectors of our people. Our voices are their voices.

If we restrain debate on judges today, what will be next: the rights of the elderly to receive social security; the rights of the handicapped to be treated fairly; the rights of the poor to obtain a decent education? Will all debate soon fall before majority rule?

The irony here is rich. The same Robert Byrd, the supposed Constitutional historian of the Senate, today so concerned about the possibility of the end of a Senate tradition of the filibuster (which, though valuable, is not mandated by the Constitution), then turns around and threatens that the end of the filibuster will mean the end of federal entitlements - which themselves are unconstitutional. The man actually thinks - he really thinks - that as long as we have “free and open debate,” Congress has the right to curtail our civil liberties. How can one reason with a person like that?

But the chief irony isn’t with just Senator Byrd, a man who used his clout to rob wealthier states to fund pork-barrel projects in West Virginia. It is with statists - with worshippers of government - everywhere. If we are to have government, to have compassionate bureaucracy control our lives for us, its offices must be filled, tax money must be administered, and its laws enforced. For the government to carry on its functions, it must be staffed. For the Senate to filibuster a Presidential appointment, to the bench or to the Administration, is to say:

That the nation is better off with this office being un-staffed or understaffed.

That it is better for the Senate to postpone all other business - including the budget and other appointments - to carry on the filibuster.

In other words, “We believe in big government, but only if the right people are in charge.” If President Bush’s federal court appointments are so out of the mainstream, so scary, then why do Democrats exalt the federal courts so much? Why do we make so many laws for them to interpret and enforce?

If it is indeed better for the nation to carry one with empty benches then to accept President Bush’s appointments, then it is even better for those benches to remain empty, permanently. The same is true of all Presidential appointments. If it is worth it to filibuster the President’s appointments to various offices repeatedly and indefinitely, we might as well abolish those offices.

Perhaps, for every judgeship the Democrats filibuster, the Republicans should concede the point and introduce legislation eliminating that judgeship altogether. And do the same with any filibuster of Administration appointments - eliminate any office in which the Democrats filibuster Bush’s nominee.

The logic is simple: any office that the Democrats think ought to remain unfilled indefinitely is not an essential office. Any government office that is not essential is frivolous and a waste of the taxpayer’s money.

This could be part of any future budget cuts. President Bush and Senator Frist could announce, “If it is so important to Democrats that [thus and so] office remains unfilled, we will agree to their wishes and cut that office from the budget.” If that means fewer judges, so be it. If that means getting rid of a Cabinet department, so be it.

What’s the counter-argument? “No! This office is crucial; only the President’s nominee for the office is unacceptable. This nominee is too dangerous.” But this is only saying, the power he would wield in the office is too dangerous. If the power of the office depends solely on good and intelligent men, and would be forever ruined by average or bad men, then the office is too powerful.

The original Constitution’s brilliance is that it was designed so that the Union as a whole could survive despite incompetent or mediocre leadership. But today, the powers of the government are so great that competence and genius are at a premium. Apparently, we can’t afford a government staffed by average men and women. A nation that could survive a Millard Fillmore, a Benjamin Harrison, a Warren G. Harding, may not survive a George W. Bush.

That is the essence of the Democratic objection to Bush’s appointments, even if they are not aware of it. But the long-term solution is not to continuously filibuster and obstruct the Bush Administration, but to commence the work of reducing the size, scope, and powers of government.




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