McConnell misunderstands founders on filibuster

By Zac Bears

Courtesy of Wikimedia Commons
Courtesy of Wikimedia Commons

Ideological discord in Congress continues to impede government progress on any major policy issues. The latest mudslinging contest is over the extension of long-term unemployment benefits to 1.5 million Americans out-of-work due to the 2008 recession. However, this is mostly being used as a shield to refight old battles, such as GOP opposition to the Affordable Care Act (ACA) and the recent decision by the Democratic Senate leadership to “go nuclear” by ending the minority party’s right to filibuster presidential nominations.

In a January 9 Senate floor speech, Senate Minority Leader Mitch McConnell said, “For months, the Democrats who run Washington have been desperate to distract from the pain of Obamacare…”

Senate Majority Leader Harry Reid responded, “We know the Republicans are not going to allow us to close these long overdue tax loopholes. So they come up with all this chicanery like whacking Obamacare.”

This broader inability of Congress to pass laws, maintain civil debate and engage in the business of governance stems from one problem: obstruction. Since Obama’s inauguration in 2009, the GOP Senate minority has filibustered 82 presidential nominees, while before 2009, Senate majorities had only filibustered 86 nominees. Out of the 168 nominees blocked by the Senate in U.S. history, 82 were nominated by Obama.

On Thursday, President Obama said, “Today’s pattern of obstruction — it just isn’t normal. It’s not what our founders envisioned.” However, in April 2005, while still a Senator, Obama said, “[The American people] don’t expect…one party…to change the rules in the middle of the game.”

McConnell has made the opposite ideological flip-flop. On Thursday, he said, “It reminds [the American people] of the power grab…Democrats set up one set of rules for themselves and another for everybody else.” In May 2005, he said, “The majority in the Senate is prepared to restore the Senate’s traditions and precedence…it’s time to move away from…advise and obstruct and get back to advise and consent.”

Both Republican Senator John Cornyn and Harry Reid have undergone a similar transition as their parties moved from majority-to-minority and minority-to-majority, respectively.

A senator’s filibuster ideology sways almost as easily as the majority of the U.S. Senate. Regardless of party, a senate minority will always desire as much political power as possible. A robust filibuster, particularly when combined with a split Congress, provides a minority party with a veto on most policy business.

Since the Democrat’s decision to “go nuclear” on the filibuster for nominations, McConnell has decried growing inequity in Senate rulemaking and the apparent ignorance of the founders’ intent on Senate procedure.

In a January 12 Politico Magazine feature, McConnell said, “That’s why, if lawmakers are to face up to the most pressing national challenges ahead, we will need to restore the Senate to the place the founders in their wisdom intended, not the hollow shell of the institution we have today.”

But McConnell shows his own ignorance of the founders’ intent for Congress.

The founders built a legislative system whereby all bills would see three separate approval processes before becoming law: a simple majority of the U.S. House (50 percent + 1 vote), a simple majority of the U.S. Senate and the signature of the president.

According to a history of the filibuster by Sarah Binder, the first one occurred in 1837, and the view that 19th century “filibusters were reserved for the great issues of the day and that all senators cherished extended debate…misreads history in two ways.”

Binder shows that there were few filibusters before Civil War because the Senate operated by majority rule and senators expected that all bills would be brought to a vote. In fact, the majority attempted to ban filibusters but failed repeatedly because the minority party would filibuster any attempt at rule change.

A letter to the Baltimore Sun from December cites a variety of sources stating that one of the founders’ greatest fears was minority rule in Congress, including Federalist Papers 22, 58 and 75. The senate filibuster specifically countermands the intent of the founders as it pertains to majority rule. The author states, “The Framers in 1787 deliberately asserted that a simple majority of the members of each House was a quorum and that there would be only a few votes requiring a two-thirds majority for passage.”

Only on the most important issues (overriding a veto, expelling a member of Congress, amending the Constitution and approving treaties) did the founders require greater than a simple majority of the Congress. Now, the founders’ system of a three-step system founded in a simple majority has given way to minority rule.

All legislation at the federal level now faces four procedural vetoes: the president, the House majority, the Senate majority and the Senate minority. The founders placed great emphasis on majority rule but feared tyranny of the majority and created a system to contain it.

Tyranny of the minority, on the other hand? Well, the founders advised us more than 200 years ago; they placed the simple majority at the heart of the Constitution. We just refuse to consent.

Zac Bears is a Collegian columnist and can be reached at [email protected]