The Filibuster: A (Reluctant) Madisonian Case

As the Senate filibuster braces to receive what may be a mortal wound via the invocation of the “nuclear option” on executive nominees, there are at least 413 reasons to wish the dilatory tactic ill—and one compelling constitutional reason to keep it.  The former is the number of times cloture motions to end debate have been filed since 2007 alone, a measure of the collapse of comity in an institution that used to run on that quality.  The latter is that the filibuster may—or at least can—now function as a constitutional prosthetic, performing the seasoning function the Senate was initially intended to fulfill but which the frenzied pace of modern life has subsumed.

Who did what to whom and who did it first on this issue is a matter of reasonable dispute.  Republicans say the filibuster has been necessary to prevent Democrats from running the Senate on a basis of bare majority rule.  Democrats counter that Republicans have used it to render the Senate a de facto 60-vote body for ordinary legislation.  What is clear is that use of the filibuster roughly doubled starting in 2007, and that somewhere along the way, the old gentleman’s bargain that it would be used only for intense disagreements broke down.  Filibusters are now routinely used even on legislation the filibusterers themselves later support.

The result is that majority rule in the Senate is imperiled.  To be sure, majority rule is not the only constitutional value that matters, but before conservatives resort to originalist arguments to support the filibuster, they should consider that majority rule’s pedigree is distinguished.  It begins with James Madison, who called “respect for the will of the majority” the “vital principle of our free Constitution.”[1]  Madison bitterly objected to constituting the Senate on the basis of equality between the states as an attack on the principle of majority rule, displaying a rare willingness to take the Philadelphia Convention to the point of collapse over the issue.  Significantly, among a tangle of compromises that emerged from Philadelphia, this constitution of the Senate was the only one he declined to defend in The Federalist, casting it aside instead as a naked political compromise that it would be “superfluous to try, by the standard of theory. . . .”

There are, in short, powerful reasons to see the filibuster as an un-Madisonian device—contra the narrative that sees filibuster reform as anti-originalist—except that it may now be the one expedient preserving the purposes Madison did foresee for the Senate: seasoning public moods and compelling consensus. He writes in Federalist 63:

As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind?

Notice, again, the commitment to majority rule: The sense of the community both “ought” and “will” prevail, but it is the “cool” and “deliberate” sense that deserves to be registered.  The Senate serves the chief cooling function.  To the extent the Senate was consequently supposed to be separated from immediate public whims, however, this was accomplished by its constitution itself, especially its appointment by state legislatures (whose method of filtering public opinion through one level of elected officials is akin to Madison’s original proposal for a Senate elected by the House) and its staggered six-year terms.

Each of these mechanisms has been overtaken by events.  The 17th amendment removed the filter; the compression of time at the hands of technology—on this point, see William Scheuerman’s incisive Liberal Democracy and the Social Acceleration of Time as well as an excellent, indeed, profound, work here—has so sped politics that the seasoning processes Madison foresaw for the Senate, which assumed that passions would dissipate with time, no longer obtain.  Meanwhile, the party committees—the National Republican Senatorial Committee and the Democratic Senate Campaign Committee—maintain a permanent and nationalized campaign for the majority, renewed with each two-year election cycle, that trumps the staggering of Senate terms.

Properly utilized, the filibuster can serve as a substitute for these mechanisms, maintaining the Senate’s seasoning function.  It can slow debate, stopping stampedes toward impassioned legislation and allowing reason to take hold.  It can impose stability, preventing legislation from swinging to and fro with every election.  The filibuster can also force consultation, preventing the imposition of significant legislation by simple majorities.

Reforms that restore the filibuster as a genuine measure of intensity—limiting the number of times it can be utilized, for example—might help ensure it performs those functions.  But one suspects, in the end, that the filibuster can have no more integrity than the Senate’s membership.  It is a tool inherently liable to abuse.  Using it to transform the Senate into a 60-vote body for ordinary legislation might have some virtues.  But conservatives considering how aggressively to use the filibuster should not delude themselves: “Madisonian” would not be among them.

[1] Letter to Jonas Galusha, November 30, 1812.