Devil's Advocacy: In Defense of Filibusters

"T his is not what democracy looks like," the editors of The Nation protest in the leader for the December 14 issue, "When Americans vote, by overwhelming majorities, to place control of the executive and legislative branches in the hands of a party that has promised fundamental change, they are supposed to get that change, They are not supposed to watch as a handful of self-interested and special-interested senators prevent progress by exploiting the arcane rules of the less representative of our two legislative chambers..."

Once again, the magazine is calling on the congressional Democrats to use their simple majorities to change the legislative rules to eliminate what has come to be known as a filibuster -- something different from Mr. Smith's mythic lone stand against the whole Senate but just as capable of paralyzing legislation. As in the past, The Nation states the obvious, that the current rules are antidemocratic (not to mention anti-Democratic), though I don't quite recall if they were as insistent on this point back in 2005 when a Republican majority was pondering the same sort of reform to expedite the confirmation of reactionary judges. Correctly, they taint filibusters and any rules that require "supermajorities" as the legacy of sectional racism. And they argue the point in support of progressive health care reforms. If the Democrats did take the magazine's advice, I wouldn't kick much. But something about the argument above annoyed me a little.

Did Americans vote "to place control of the executive and legislative branches in the hands of a party?" Let's tackle the two branches separately. As far as the executive branch is concerned, the answer is obvious; a majority of voters chose a Democrat for the office of Chief Executive. What about the legislature? It will be remembered that each voter chose only one representative to sit in the House, while some got to pick a Senator as well. At the very least, no one literally voted to keep the Democratic party in control of Congress. No voter elected Nancy Pelosi Speaker or Harry Reid Majority Leader. Only by coincidence, one can argue, did these two come by their current power. Those powers are actually limited. They can't command Democrats to vote as they wish, and that's only right. Each Representative represents his district first, and his party second at best. Each Senator represents her state first, and her party second at best. To claim otherwise is to concede even more to the American Bipolarchy than most people do already. Despite appearances, Americans still vote for individuals as a matter of fact and law, not parties. Any legislative mandate the Democratic party claims for itself is provisional and not binding on individual Democratic legislators, who have their own constituents to consult before they listen to their party leaders or whips.

In this context, and so long as the Bipolarchy persists, the filibuster can be defended, at least in theory, as a check on parties and a reminder that people, not parties, vote in our legislature. If that wasn't so, and if elections worked the way The Nation claims, then why not just give Harry Reid 51 votes to cast and send the other Democrats out to their real work of fundraising? Under different circumstances, we could insist that a simple majority should rule in both houses, but in our time it's more than fair to question whether a partisan majority in either house really represents the will of a majority of the American people. This isn't a plea for the pathetic bipartisanship that President Obama has practised occasionally, which in its assumption that opposition support legitimizes controversial measures is just as much a capitulation to Bipolarchy principles. It is an insistence that government needs a check against the major parties and an acknowledgement that we may as well make the most of tools that already exist.