By Jamelle Bouie
On Wednesday, Senate Democrats finally held their formal debate over ending (or at least amending) the filibuster to pass a new voting rights bill. Joe Manchin of West Virginia, a steadfast defender of the filibuster, repeated his case for keeping the rule, which in its current incarnation allows for unlimited debate on select forms of legislation barring 60 votes to end it.
“Allowing one party to exert complete control in the Senate with only a simple majority will only pour fuel on the fire of political whiplash and dysfunction that is tearing this nation apart,” he said. “Contrary to what some have said, protecting the role of the minority — Democrat or Republican — has protected us from the volatile political swings that we have endured over the last 233 years.”
Manchin, as he has in the past, cited James Madison — by way of his predecessor, Senator Robert Byrd — to make his point.
“Madison said that the purpose of the Senate was ‘first, to protect the people against their rulers, secondly, to protect the people against the transient impressions into which they themselves may be led,’ and that the Senate serves as a ‘necessary fence against such danger.’ Senator Byrd testified that ‘the right to filibuster anchors this necessary fence.’”
I obviously disagree with Senator Manchin about the filibuster, about which I’ve had plenty to say. But I want to bracket that disagreement to focus on his ritual invocation of Madison who, it should be said, was never a member of the Senate (he did serve four terms in the House of Representatives).
If you’re interested, you can find this quote in the June 26, 1787, entry of Madison’s notes on the Constitutional Convention in Philadelphia. At this point, the delegates are discussing the term of office for the Senate. Before he gives his views on the matter, Madison says, “In order to judge of the form to be given to this institution, it will be proper to take a view of the ends to be served by it.”
It is then that he says, “These were first to protect the people against their rulers, secondly to protect the people against the transient impressions into which they themselves might be led.”
At no point in this discussion was there any talk of a filibuster (a word not yet in common use) or any principle of unlimited debate. Madison’s point was that the structure of the Senate itself — its long terms of office, indirect method of election and staggered times for choosing members — would do the work in question. “A necessary fence against this danger would be to select a portion of enlightened citizens, whose limited number and firmness might seasonably interpose against impetuous counsels.”
Here’s where things get a little complicated. When Manchin and other filibuster defenders speak of protecting the “minority” in Congress, they mean a partisan minority. “Democrat or Republican,” as he said. But no one in Philadelphia had any idea of political parties, much less a partisan minority. They didn’t exist and none of the framers thought they would.
When Madison speaks of a “minority” in the context of the Senate, he means an economic interest, not an organized political faction. “In all civilized Countries,” he says, “the people fall into different classes having a real or supposed difference of interests. There will be creditors & debtors, farmers, merchants & manufacturers. There will be particularly the distinction of rich & poor.”
The issue for Madison, a young Virginia planter at this point in his life, is how, using the principles of republican government, to prevent the rise of a “leveling spirit.” When he asks, “How is the danger in all cases of interested coalitions to oppress the minority to be guarded against?” he is not speaking about different parties; he’s speaking about the mass of the poor, working and indigent against the owners of property and wealth.In framing a system which we wish to last for ages, we should not lose sight of the changes which ages will produce. An increase of population will of necessity increase the proportion of those who will labor under all the hardships of life, and secretly sigh for a more equal distribution of its blessings. These may in time outnumber those who are placed above the feelings of indigence. According to the equal laws of suffrage, the power will slide into the hands of the former.
The question of how to balance power between two partisan factions within a legislature never came up, which should make it difficult to use Madison in defense of something like the filibuster. The most we can say is that Madison expected the Senate to be an elitist body and within that body, it would operate on the principle of majority rule except for when the Constitution stated otherwise.
You could make the argument that by blocking most egalitarian legislation, the filibuster does fit within the design and intent of the Senate. Then again, Madison was worried that the legislature would be carried away by the passions of the moment. It is unclear what he would think about a system required deliberation over time to pass legislation. To implement its agenda, a party has to win at least two consecutive election cycles. During that time, party elites and affiliate groups debate and deliberate among themselves over their priorities should they win power. And then, once in power, they have to negotiate the specifics of the bills in question.
Put another way, the debate over majority rule in the Senate isn’t about whether the chamber will have the power to stop any irrational exuberance in its tracks. It’s about whether, after an extended period of time, internal deliberation and public debate, a partisan majority in the Senate can pass its agenda into law using a simple majority.
I think it should. If the path from idea to bill to law includes multiple election cycles, where different and overlapping electorates weigh in on the parties and policies in question — and if it includes deliberation and debate within the chamber itself, including cooperation and negotiation with both the president and the House of Representatives — is that not akin to the proverbial “cooling saucer”?
I think we should at least consider the temporal hurdle I’ve described a kind of supermajority requirement that, once met, entitles a governing party to using a simple majority to pass its legislation. Between bicameralism, separated powers, the diverse and fractious nature of the parties themselves and the simple passage of time, we already have the forces that prevent whiplash and chaos. We don’t actually need another.
https://www.nytimes.com/2022/01/22/opin ... dison.html