Protecting minority rights is an important responsibility of government. However, whether a filibuster is even relevant in doing so is a question that should be debated. Filibusters are used, almost exclusively, to protect the interests of the party out of power, preventing the controlling party from passing legislation deemed bad, or to prevent the President from making appointments unpopular with the minority. By themselves, and when used in moderation, filibusters are alright, but when they are used to hamstring the normal workings of Congress and government they cause more harm than good.
A filibuster is a type of parliamentary procedure where debate is extended, allowing one or more members to delay, or entirely prevent, a vote on a given proposal. It is a form of obstruction, which again is okay when used sparingly. Interestingly, and perhaps relevantly, the English word derives from the Dutch, vrijbuiter, which means “privateer, pirate, robber.” One might argue that the word has assumed its original meaning.
I am not a lawyer, so my information may be wrong, but according to an article in the Washington Post published a year ago, the Constitution proscribed only five instances that would require more than a majority vote: Impeaching a President; Expelling members; Overriding a Presidential veto or order; Ratifying treaties; and Amending the Constitution. Everything else was expected to be approved by a majority vote. In the same article, Atlanta lawyer Emmet Bondurant, stated that the concept of the filibuster was born in 1806 when the Senate voted to delete a provision called the “the previous question” motion. The idea is being that, as all Senators were considered gentlemen, they would know when to stop talking. As we know today, and not just because of their gender, most Senators do not act like gentlemen and most do not know when to stop speaking.
In early years, the filibuster was used sparingly – sixteen times between 1840 and 1900, but during that time there was no rule for cutting off debate. Thus, in 1917, at the urging of President Wilson, the Senate adopted the modern-day “cloture” rule, which allowed for two-thirds of the Senate to end a filibuster. In 1975, with Democrats in control of the Senate 60-38, the threshold for cloture was reduced to three-fifths, or, conveniently, 60 votes. That stands today.
As politics have become more polarized, filibusters have become more common, but as they have become more common, they have become less powerful because it is easier to break a filibuster through cloture. Thus, while popular, they have become less effective. They do, though, reflect the acrimonious divide in the Senate. According to the Senate Historical Office, motions to end debate through cloture were used 130 times during 2003-2006, when Republicans were in control, and 276 times during 2007-2010, when Democrats ran the Senate. The trend has persisted. The party in power consistently bemoans the degradation of Senate decorum due to filibusters, but doesn’t want to give up the option, as they know that at some point in the future they will become the minority party.
Which is the chicken and which the egg is not clear, but increased filibustering has certainly aggravated an already fractured Senate. That should not be the case. As Americans, we are unique among nations in that we have grown to prominence, not as a colonial empire, nor as part of a commonwealth, nor even as a nation with a common heritage, but as afree and independent country – an amalgamation of mixed races and creeds – a melting-pot, to borrow a phrase. Certainly, we have tensions: Race, immigration, a wealth gap, cronyism – the list goes on. As President Obama noted in his White House speech Friday on race, many prejudices are deeply embedded in our culture, and answers will only be found over time.
But, I thought the President missed an opportunity to expand on the subject of race, and he is the only President we have ever had that could. He did say we cannot retreat into our respective corners and that we should all soul-search on matters of race. But, he could have been more open and honest about the deleterious role politics has played and the effect it has had on our culture. Racial profiling is not healthy, yet isn’t that what affirmative action does? Racial profiling is effectively a form of implicit segregation, yet isn’t that the consequence of political compartmentalization? Both political parties are guilty of doing the latter; for it simplifies attempts to appeal to different sectors – the young, single women; soccer moms, African-Americans; environmentalists; the Hispanic community; Chinese-Americans, etc. (I could add old white men, but I find very few politicians who actually seek me out!) We are sliced and diced into small sectors, each a specific target – and each, ironically, a form of segregation.
With an emphasis on segregated components of society, we risk losing themelting-pot aspect of our culture. It is, to borrow an old adage, an example of missing the forest for concentrating on the trees. I wish the President had used the words “personal responsibility” in his speech. We are all, including Mr. Zimmerman and Mr. Martin largely responsible for the actions we take and the consequences that ensue. There are, of course, exceptions – acts of random violence, accidents and luck – over which we have no control. There is no question that Mr. Obama was telling the truth when he said that as a youth he could not walk through a department store without being eyed, or that he had heard the clicks of door locks when he walked by parked cars. But he also could have used the podium to speak of the importance of education, of working hard, of not committing petty thievery, or defacing private or public property. He could have reminded people that we are all held responsible when we stray from laws and customs. He could have spoken of the importance of families – his own, for example provides a model to be emulated – and that when families disintegrate, it is the children that suffer; and when our children suffer, so does society.
When Mr. Obama proposed as a solution “racial sensitivity training for police and other peacekeepers,” he could have added that we must all have respect for one another, in order that we may achieve self-respect. In short, he could have used the moment to seize on the importance of self-reliance and aspiration – that success and dependency can never go together. While Mr. Obama spoke of how Trayvon Martin could have been him thirty-five years ago, he was speaking stereotypically, not in Terms of character. He could have emphasized the latter as being more important to all people, regardless off ethnicity, creed or race.
The political compartmentalization of our society serves as a red herring to avoid focusing on structural weaknesses. The most damaging aspect of too much government interference in our daily lives is an increased dependency and a decreased sense of personal responsibility. As a dependent people, we are less able to fend for ourselves. We see the consequences in a healthcare system that had its genesis in the post-War era where, with wage and price controls in place, businesses competed for employees by offering benefits. We see it in a welfare system that has morphed into a lifestyle option. We see it in programs like affirmative action, where entitlements replace merit.
I worry about the gradual usurpation of executive power in Washington. Mr. Obama is only the latest in a long string of Presidents who have sought more power for the Executive branch, whether it is in the use of “Czars,” or empowering departments with the ability to implement rules that they have formulated, thereby bypassing Congress’s role as lawmaker. The office of President, as Theodore Roosevelt used to say, isa “bully pulpit.” It can be used to influence events by going directly to the people, but it should not be used to increase power by unilaterally making recess appointments, by simply declaring the Senate not in session. And, it should not be used to empower the Department of Environmental Protection to penalize violators of laws never passed by Congress. In part, I suspect it is t his growing influence of the Executive branch that has caused whichever party is on the outs, to make use of filibusters. But, in my opinion, they are wrong. Obstruction is not legislation. As Thomas Dolan wrote in last weekend’s Barron’s, “The threat of elections is better than the threat of a filibuster.” He added, “Ending the filibuster would help new Senators repeal unpopular legislation, and that would force constructive compromise more effectively than the current rules.”
While we are a nation of individuals and we come from myriad backgrounds, races and creeds, it is our commonality as Americans that should be promoted. We must better understand our history and that of other nations to fully appreciate the good fortune that is ours. Nothingis perfect, nor will it ever be. There will always be those who need help; there will always be those who have criminal intent. But we must learn to understand that we are responsible for the consequences of the choices we make, and that the opportunity for success is ours, but that it takes aspiration and diligence. When we elect a President, Senate and House, we have spoken. One of the consequences should be that those we have elected should be able to pass legislation and make appointments with a majority vote. (If Republicans are concerned about always being aminority party, they should become more aggressive in terms of encouraging immigration. Pro-growth policies, incorporating more open and robust strategies toward immigration, would serve them well.)
Filibustering needlessly and endlessly serves no one well, and the cloture that is used to close debate almost always results in personal recriminations. It is time, in my opinion, to abandon the filibuster in its current form. Congress, as well as individuals, must learn to live with consequences of elections. While respecting those that differ, a President is in a unique position to unite the country. That should be the goal. Divide to conquer may be an appropriate military tactic, but it rarely works for a President, and has certainly abetted partisanship in Washington. And, we should keep in mind that none of us is entitled, except to live freely under the law. But that, as a study of history will inform, is a very great gift. Unfortunately, it is not one much appreciated any more.
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