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OPINION | BRADLEY GITZ: To praise obstruction

by Bradley Gitz | April 5, 2021 at 2:00 a.m.

Had Republicans won even one of those two Georgia runoffs we would now be hearing about how an archaic Senate is obstructing the Biden administration agenda and thereby resisting the "people's will" (with those who voted for Republicans in Senate races apparently not counting as people).

But because Democrats won those Georgia races, we're hearing instead that the Senate filibuster must go because it is undemocratic and a relic of Jim Crow.

In short, whatever obstructs the left's wishes is always depicted as a threat to democracy, even if it's something that Democrats themselves often resorted to and praised.

Among the many problems with the effort to gut the filibuster is a failure to realize that the upper chamber of Congress was always intended to be an anti-majoritarian institution that would filter the passions of ephemeral majorities flowing from the lower. Far from reflexively reflecting the "people's will," the Senate was designed to obstruct it through a process of careful scrutiny and deliberation.

The filibuster isn't part of our formal constitutional apparatus, but it has in its various manifestations over time upheld a key goal of it--preventing agendas enacted by narrow, fleeting majorities.

It was a mistake in this sense for Harry Reid to eliminate the filibuster for executive branch appointments in 2013 and for Mitch McConnell to then eliminate it for Supreme Court nominations in 2017.

It should have been obvious that anything you do in an effort to gain an advantage over the other side will later be used by the other side to its advantage in a nation where control passes back and forth between the two parties.

What Robert Bork called the "temptation of politics" is always driven by impatience and frustration, by the belief that desperate times require desperate measures, ends justify the means, and rules can be expediently discarded without doing damage to the integrity of the political institutions upon which our experiment in self-government depends.

To make sweeping changes based on the assumption that such changes can entrench permanent advantage is both shortsighted and likely to backfire. Again, what you can do to them today, they will be able to do to you tomorrow; hence the need to avoid doing precisely what Democrats are now considering doing.

The idea that a temporary majority would use its power to change the rules in order to pass legislation (D.C./Puerto Rico statehood, loosened national voting rules, a packed Supreme Court, etc.) that would make their majority permanent undermines the very logic of our constitutional order.

Going beyond this misunderstanding of the role of the Senate in our system of checks and balances is a broader misunderstanding of the role of the federal government and of government in general.

Too many have forgotten that the primary purpose of the American political architecture was to prevent tyranny, defined as too powerful a government attempting to do too much.

We wouldn't have a bicameral legislature if automatic agreement was intended across both chambers; rather, the division of authority, as with the division between the three branches themselves, was intended to disperse power as much as possible (the system of federalism at the vertical level would contribute to this dispersion as well).

The federal government would do only those things that were necessary to do and couldn't be done at the state level, and it would be prevented by its anti-majoritarian features from doing much else.

Put differently, any proposals for radical, potentially irrevocable change that can only be passed via a vice-president's tie-breaking vote shouldn't be.

As Jim Geraghty notes in National Review, "When senators are in the majority, the majority rules, and the minority must not be allowed to block the priorities of the duly elected majority (even if that 'majority' consists of 50 senators and the 'minority' consists of 50 senators). When senators are in the minority, they recognize the filibuster is an important tool that protects the rights of the legislative minority, forces the chamber to seek consensus, and ideally prevents a bad idea from getting rammed through on a close party-line vote."

Geraghty also points out that one of the best arguments for keeping the filibuster came from senator who once said, "I've been in the Senate for a long time, and there are plenty of times I would have loved to change this rule or that rule to pass a bill or confirm a nominee that I felt strongly about. But I didn't, and it was understood that the option of doing so just wasn't on the table.

"You fought political battles; you fought hard; but you fought them within the strictures and requirements of the Senate rules. Despite the short-term pain, that understanding has served both parties well, and provided long-term gain. Adopting the 'nuclear option' would change the fundamental understanding and unbroken practice of what the Senate is all about. Senators would start thinking about changing the rules when they became 'inconvenient.' Instead of two-thirds of the vote to change a rule, you'd now have a precedent that it only takes a bare majority.

"Altering Senate rules to help in one political fight or another could become standard operating procedure, which, in my view, would be disastrous."

Yes, that was the senator from Delaware speaking, a fellow named Joe Biden.


Freelance columnist Bradley R. Gitz, who lives and teaches in Batesville, received his Ph.D. in political science from the University of Illinois.

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