Filibusters: Good for restraining government

By John Watts

The fresh faces of the Democrat side in the Senate, and many others on the left in general, are already frustrated with their majority leader, Senator Harry Reid.

They are frustrated with Reid’s reticence to ram Senate rules “reform” down the throats of the Republicans. In this case, “reform” meant drastically reducing the threat, or abandoning altogether, the legendary filibuster.

Some have speculated that Reid and other Senate veterans remember what it was like when they were in the minority not too long ago. Republicans had tried to take similar measures to make it easier to pass their judicial nominations in 2005. At that time, Reid described Republican efforts to end the use of filibusters to hold up judicial nominations as “the arrogance of power.”

There’s a good chance the Democrats may be in the minority again after the 2014 elections. They have to defend 20 seats compared the Republicans, who have to defend only 13. More of the Democrat seats are in swing states, while only one Republican seat is likely to be lost.

While it is true that the filibuster is no longer used in its original form – Senators no longer have to go to the floor and talk until a physiological breakdown – it is an immensely important mechanism in restraining government.

Those who say the Senate is not functional and is too easily obstructed by a minority need to keep in mind the Senate was intended to be the more (small ‘c’) conservative house of Congress. It was also originally supposed to represent the interests of the states as individual political units, maintaining their sovereignty in all the internal matters that the Constitution did not specifically enjoin the federal government to handle. But thanks to the 17th Amendment, passed during the high tide of progressive legislation in 1913, Senators are no longer elected by the state legislatures. The Senate has essentially become a more prestigious version of the House of Representatives. It has fewer members whose constituencies entail their entire state’s electorate.

It’s also important to remember that the Senate has ceded much of constitutionally-granted pre-eminence in the foreign policy arena to the ever-strengthening executive.

The Senate should hew closer to its original design, especially in light of the way some Congressional leaders view the legislative process. It is difficult to forget former House Speaker Nancy Pelosi's sagacious instruction that “we have to pass the bill to find out what is in it.”

Most notably, Senator Rand Paul has led efforts to make sure bills are properly studied and vetted before being passed – see his initiative to Read the Bills.

Constitutionalists can breathe a sigh of relief if we agree with the view of Herbert Spencer, who pointed out the nature of ‘over-legislation’. That is, most of it is unnecessary at best, but usually harmful in its ultimate effects.

As Spencer put it:

“Where, then, is the warrant for the constantly proposed extensions of legislative action? If, as we have seen in a large class of cases, government measures do not remedy the evils they aim at; if, in another large class, they make these evils worse instead of remedying them; and if, in a third large class, while curing some evils they entail others, and often greater ones; if, as we lately saw, public action is continually outdone in efficiency by private action; and if, as just shown, private action is obliged to make up for the shortcomings of public action, even in fulfilling the vital functions of the state; what reason is there for wishing more public administrations? The advocates of such may claim credit for philanthropy, but not for wisdom; unless wisdom is shown by disregarding experience.”

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