AMAC Exclusive – By Daniel Roman
Democrats are at it again. Egged on by a media class which forced the otherwise mild-mannered Joe Manchin to resort to a blunt “No” on Biden’s spending bill (as they could not take the hint like some sort of date from hell), they are now trying to bypass or outright eliminate the filibuster in order to pass a radical overhaul of election laws. The argument Democrats make is that there is no Constitutional requirement for a supermajority and that the filibuster has already been eliminated for judicial nominations, a move initiated by the late Harry Reid (D-Nevada), and by Mitch McConnell himself who initiated the same carve-out for Supreme Court nominations.
Many columns have been written about the problems with Democrats’ election overhaul proposals and defending the importance of the filibuster. But less attention has been paid to the more abstract “constitutional principles” behind the filibuster—western political traditions that have existed for hundreds, even thousands of years, which Schumer and his colleagues are threatening to overturn.
“Democracy” is a word that Democrats and much of the media like to throw around these days, but generally speaking, people use it to mean that whichever side has more votes should get their way.
But in fact, this is not “democracy.” Conservatives all too often concede this point. A democracy going back to Athens was not about elections alone. In fact, Athenians believed elections were “undemocratic” insofar as they actively encouraged candidates to buy votes, form mobs to intimidate voters, and otherwise corrupt the process. Rather, they chose candidates by lots and then required consensus. The purpose of Democracy was that people were required to reach a level of consensus. Whether the consensus decision reflected the preferences of 53% or 47% was beside the point because the Athenians believed that decisions that 47% of a community thought were bad were likely to be more devastating to social cohesion to implement than any benefits which could arise. The goal was a system which was representative of all interests, and which prioritized the ability of everyone to “live with” an outcome over the right of narrow majority or plurality to have its way all the time.
This tradition was passed down to the American Founders by way of the English Parliamentary tradition. The English Parliament rarely, if ever, had roll call votes on legislation precisely because the body saw its role as representing the taxpayers of the nation in a constitutional system with the King. If the purpose of a Parliamentary vote to levy a tax was that it represented the consent of taxpayers to pay it, a 240-223 vote would still involve forcing almost half the nation to pay a tax without its consent. This did not mean there were never divisive votes. But they tended to signal a breakdown of the system, as with the Great Remonstrance issued to Charles I in 1642, which passed by a mere 159 votes to 148. The vote illustrated not the unity of Parliament but its divisions and encouraged the King to launch the Civil War.
The result is that until the 19th century, there was no “legislative guillotine” in western democracies, i.e., any sort of system whereby a narrow majority could force a vote. There was an understanding that the purpose of legislative votes was not legalism per se but to gain broad consent for the laws, and that therefore narrow margins for divisive legislation purchased by trickery, bribery, and intimidation were counterproductive to that end.
This sort of tradition was brought into the U.S. Congress by the Founders. The U.S. Declaration of Independence was issued by unanimous vote. The Articles of Confederation required unanimous consent, and when Maryland held out, other states spent more than a year haggling. This revealed another flaw, namely the ability of one party to block legislation if consent was the goal. But the Athenians had been dealing with this problem more than a thousand years earlier. They wanted consensus but recognized the danger of bad actors and therefore invented the “Ostracism,” under which each year the voters could choose to exile a politician or public figure. As it was limited, it could not be used against a party but could be used to remove those who were threats to the system. The British Parliament and other western governments had their own ways of achieving the same end.
The United States, then, was the inheritor of a tradition in which the goal of representative institutions was first to try to achieve consensus, rather than for one party to narrowly prevail, and second to safeguard against any bad faith actors using denial of consensus for extortion.
The solution the Founders settled upon was the division of powers between the President and the Congress and, in turn, the division of powers between the Houses. But there is another division – between things Congress must act on and things it can act on. With few exceptions (things like treaties and certain aspects of government finance), there is no reason to believe there was ever any intention, or particular concern, with the need or ability of Congress to pass legislation. By writing out specific functions and the majorities necessary to execute them, the Founders made clear they saw a difference between what Congress needed to do – pay the debts, confirm or reject appointees – and things which it should only do if there was widespread consensus – i.e., pass other legislation. They themselves wrote super-majorities into the Constitution – 3/4ths of the states for constitutional amendments, 2/3rds of Congress.
This was not backward-looking but forward-looking and wise. To understand why, one does not need to consider only the Democratic proposals regarding the takeover of elections, but also some of the ideas conservatives have floated in response. They have ranged from national repeal of all state and local gun laws, to national educational curriculum guidelines. Whatever the merits of these policy issues in isolation, an effort of a narrow congressional majority, say 223-212 in the House and 52-48 in the Senate, to impose a conservative school curriculum in California, or some other aggressive move against blue states, would produce a major constitutional crisis, with California politicians likely to resist by both legal and illegal means. True conservatives tend not to want to force their values on Blue State voters—they are fine for everyone to live and let live. That Democrats quite obviously do not share the same feeling toward Red State Americans reminds us is why the filibuster is so important. It prevents legislation from passing which not only would be difficult to enforce, but for which any efforts to enforce it would harm the country.
The Democrats believe their legislation is good. But without broad consensus, all their proposals would do if passed by a 50-50 Senate vote would be to force their own vision of congressional redistricting, vote-by-mail, and ballot counting on every state in the country, a majority of whose senators will have opposed the rules. Beyond the electoral consequences, the social damage from that and the precedent it sets would be a disaster. It is very clear that a large portion of Americans will no longer trust our electoral system if they succeed. If we want to live in a unified country, we should not want to live in a country where either side can pass sweeping and transformative legislation on a narrow 51/49 vote.
Our Founding Fathers saw that. The British, Romans, and Athenians before them saw it as well. The filibuster itself may be an American innovation, but it fulfills a function that every democratic system throughout human history has needed: an incentive to reach consensus on legislation rather than to merely pass resolutions and laws for the sake of it, and a reminder to governments that just because they can pass something does not mean they should. It is working as intended, and Democrats should reflect on what would actually happen if they got their way.
Daniel Roman is the pen name of a frequent commentator and lecturer on foreign policy and political affairs, both nationally and internationally. He holds a Ph.D. in International Relations from the London School of Economics.
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