Liberty Expose: National Conservatives Should Challenge The Filibuster
Bloomberg
During the opening weeks of the new Biden administration, the Senate filibuster has become a salient topic of debate among politicians and commentators alike. On the one hand, many Democrats express a willingness to eliminate the filibuster should Republicans leverage it to block the new administration’s agenda at every turn. Faced with a myriad of national crises, they fear that this powerful tool of legislative obstruction could be used to block efforts that the country desperately needs. Such, indeed, has been the tendency of the past two decades, during which the filibuster has become an increasingly common practice of obstruction, and not the rarity it used to be.
On the other hand, Republicans and even some Democrats remain wary of scrapping the procedure, which has persisted through various iterations since the early 19th century. Principled advocates point to its role as a moderating force in the Senate, by which the minority can leverage concessions from the majority before a bill comes to a vote. Others, it may be supposed, seek to preserve it as a means of stifling democratic politics, and bringing government to halted gridlock (which, it must be remembered, is in the interest of those who favor anti-statism in the name of “liberty”).
But what are the underlying principles of the filibuster, and how should conservatives of the nationalist (“Northern”) cast interpret them?
Arguments For The Filibuster
The 1939 film Mr. Smith Goes to Washington presents what is perhaps the most potent moral rationale for upholding the filibuster. In this film, the filibuster allows the protagonist to halt Senate proceedings until he is able to exonerate himself from false allegations perpetrated by his own political party. The viewer leaves with the impression that the filibuster can, to a certain extent, protect the power of conscience, and serve as a noble force of disruption in the face of rampant political corruption and hegemonic rule by boss-led machines.
It should be noted, however, that the higher temperature version of the filibuster that we see in this film (where one must speak without rest, and halts all other legislative proceedings as long as the floor is held) is quite different from the one we have now; and perhaps this is not for the better, since the newer version lowers the “institutional cost” of using it. The current filibuster is much easier to pull off because it is confined to a part of the day, which means one need not speak for exceptionally long periods of time, and other legislative matters can be addressed in the same day. Therefore, the role of the filibuster as a last ditch effort at stopping seemingly unacceptable legislation until the public will can be brought to bear is diluted by the ease of its enactment.
For all its indeterminacy, this appeal to the legitimacy of minority conscience finds a stronger ally in the preference for more balanced, bipartisan legislation. By preserving a rule that slows the legislative process by granting some power to minority parties, we create the conditions for a more methodical deliberative process: one that incorporates competing perspectives and, in turn, generates laws better equipped to stand the test of time. If a simple majority could simply overturn the will of its predecessor every few years, then democratic politics could devolve into a nauseating pendulum swing between extremes, neither tempered by compromise nor dignified by a steady course of intelligent development.
Three important inferences follow from this pro-filibuster argument. First, the obstructive aspect of the filibuster is secondary to the greater aim of compromise and balanced deliberation, not an end in itself. It stalls action, but only in order to refine its contours. Second, the rationale of the filibuster is conservative insofar as it favors slow, prudent legislation as a corrective for capricious majorities. Third, the filibuster infuses a “parliamentary” element in the predominantly winner-takes-all American system. Just as parliamentary governments integrate compromise through proportional party representation, the filibuster attempts to incorporate a dynamic of compromise after the fact through a stalling mechanism.
Why National Conservatives Should Oppose The Filibuster In Its Present Form
Granting these arguments, the filibuster in its current form does not seem to fulfill its intended purposes, and should therefore be amended as a first resort, or in a situation of sustained gridlock, eliminated.
In the first place, the current form of the filibuster makes it far too easy to carry out, thereby increasing the incentive to use it for merely obstructive, and not productive, ends. The power to halt a democratically elected majority from even bringing an issue to a vote is an awesome power that, though occasionally warranted, should carry reasonable costs (as it indeed did, prior to 1975). We should be alarmed by the dramatic increase of its use during the past few decades, and the central role it has come to play in Party politics. That it has proved such a salient issue at the start of the Biden administration is a case in point.
The devolution of the filibuster from a mechanism of compromise to one of obstruction weakens its appeal as an instrument of prudent conservatism because it incentivizes recalcitrance by anti-statist minorities (e.g. the Tea Party), who can leverage gridlock to either exact uncompromising demands, or halt the functioning of government. In consequence, politics is not moderated but, on the contrary, rendered more polarizing, extreme, and inept.
The founding generation was predominantly conservative in its preference for slow, incremental change mediated through competing interests and the separation of powers. Instead of opting for a single government assembly, they followed John Adams and their British constitutional heritage by embracing a separation of powers, in the hope that these powers would preserve an equilibrium of power in the country and avoid oscillation between extremes. They wanted a secure, if at times slow, government apparatus—one capable of channeling the highest political deliberations of its citizens, generation by generation.
However, the Federalists did not mean to subvert the democratic will of the people altogether. Having accounted for the dangers of majority rule in the rigors of the electoral process, the threefold separation of national powers, the separation of Congress into two houses, the difficulties of the amendment process, and the later development of judicial review, the will of the people was then supposed to reign supreme in the legislative branch, free to pursue its purposes with energy, boldness, and efficiency.
We should keep these preexisting limits on majority rule in mind because they help us put the filibuster in context. Given the numerous filters put in place to slow the pace of politics, we should view any further mechanisms designed to suppress democratic majorities with suspicion. There is a considerable burden of proof to be placed on a rule that effectively requires supermajorities for legislative action, especially in a body whose members are elected not according to proportional representation, but by unequal geographic units to begin with.
These arguments become even more relevant when we consider the scope of the issues now facing the country. We live in a time when bold action at the national level is necessary. Stagnant gridlock, which only helps an oligarchic few, is not only unbecoming of a great nation, but perilous for working and middle-class Americans. Nationalists committed to a strong, energetic state capable of proactively meeting these perils should therefore seek a settlement that corrects for the obstructive tendencies of a filibuster Mr. Smith would hardly recognize.