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James Wallner on the Filibuster
Michael Ramsey

At Liberty Law Blog, James Wallner (Catholic University Department of Politics): Ditching the Filibuster Won’t Save the Senate. From the introduction:

In contrast to the conventional view [that the filibuster is the key problem], approaching the Senate from the perspective of what the Framers of the Constitution intended it to do suggests that the institution is dysfunctional not only because partisans produce gridlock. The dysfunction also comes from the fact that the Senate no longer performs its deliberative role very well. Reasoned deliberation has nearly disappeared in the institution, as decision-making has gradually migrated from committee hearings and action on the floor of the Senate to informal and ad hoc meetings of interested members—meetings typically held under the auspices of the party leadership, out of public view and behind closed doors.

This leadership-led way of proceeding is problematic given that the institution’s architects shared broadly in the belief that they were creating a deliberative institution, one explicitly designed to limit the power of popular and transitory majorities as reflected in the House of Representatives. Indeed, a deliberative Senate was key to making the new government work.

And further:

To provide such a check [on majoritarianism], the Senate would have to differ significantly from the House in both its composition and the way in which it conducted its proceedings. Charles Pinckney observed during the debate over ratification in South Carolina that “the purpose of establishing different houses of legislation was to introduce the influence of different interests and principles.” In Federalist 62, Madison explicitly connected the Senate’s ability to perform its checking function to the extent to which it differed from the House, writing that

as the improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies, it must be politic to distinguish them from each other by every circumstance.

This illustrates the two distinct roles that the Framers charged the Senate with performing: passing legislation along with the House—but simultaneously checking popular opinion as expressed in the House by promoting thoughtful deliberation in the writing of the laws. This sentiment is reflected in the convention and ratification debates on bicameralism, as well as the Senate’s method of selection, size, nature of representation, and term length.

As regular readers know, I hold what Professor Wallner calls the conventional view, that the filibuster is a problem.  I agree with all he says about the framers' design for the Senate, and I agree that in theory one might expect the filibuster to promote deliberation (by giving the minority a stronger position).  But in fact it does not work that way, under current conditions: the minority (whether Republicans or Democrats) would prefer that nothing be accomplished -- and indeed the majority may prefer that as well.  I think there would be more deliberation without the filibuster.  It might be chiefly deliberation within the majority.  But the majority would have an incentive to deliberate, because what it decided upon might actually pass (instead of being filibustered).

Consider, for example, the current situation of health care reform, passed quickly in the House but now the subject of deliberation within the Senate majority precisely because it is operating under a procedure where the filibuster won't apply.  If the minority could filibuster, the majority could afford to be much less careful.

ALSO AT LIBERTY LAW BLOG (and somewhat related), Michael Greve describes his ideal constitutional amendments (to make Congress deal with the budget deficit): Amending the Constitution with Buchanan and Buckley.