God Forbid Democracy Should Take Over The Senate.

The big issue in Washington these days is whether the Republican-controlled Senate will follow in Robert Byrd's footsteps and modify the rule on filibusters. In this case, eliminate it for judicial appointments.

The filibuster is a fundamentally undemocratic rule. It permits an obstructionist minority to thwart the will of the majority under the pretense of protecting minority rights and ensuring debate. On the first point, the recent history of the filibuster in this century is not one of preserving minority rights but of oppressing them. For instance, the filibuster led by Southern Democrats against Civil Rights Laws. Minorities are protected in other ways under our constitutional system. The Senate itself was designed to give the voters in less-populated states relatively more power than the voters in more-populated states. The Bill of Rights exists to protect the ultimate minority, the individual, against oppressive government. The Courts exist to enforce the rights of the individual against the state. The veto provision enables a legislative minority allied with the President to thwart legislation passed by less than a 2/3 majority.

The second argument that the filibuster is needed to ensure debate is misleading as well. The filibuster doesn't just ensure debate, it ensures endless debate. Debates will continue to happen before legislation passes without the filibuster rule. The difference will be that at some point there would be an up or down vote that would either pass or fail depending on what a simple majority decides.

The Democrats have been arguing the filibuster is needed to protect the country against a small core of extremist conservatives. Yet another feature of our constitutional system protects against that. It's called regular elections. An overconfident legislative majority that enacts laws that are entirely out of the mainstream runs the risk of finding itself voted out of office the next time it faces the voters.

In short, the filibuster is not required by our constitutional system.

Now Democrats, well Matthew Yglesias at any rate, are seizing a new argument. Eliminate the filibuster entirely. The premise is that Democrats will be able to pass more of their agenda if all that legislation requires is a simple majority.

One thing to keep in mind here is that Republicans still hold a substantial majority in the House of Representatives, and the Presidency with its veto power remains in Republican hands. The Senate Democrats in alliance with some of their left-leaning Republicans could pass any bill they wanted with a simple majority but if they couldn't get the support of the Republican House the bill isn't going anywhere. And if the President vetoes the bill, it's not going anywhere without a 2/3 majority in each house supporting it.

Perhaps forgetting this, a conservative activist, Jim Boulet, Jr., has bought into Yglesias' premise and has warned conservatives that abandoning the filibuster runs the risk of Democrats being able to pass more liberal legislation.
It's lamentable that some Republicans still haven't completely digested the significance of the 2004 election and lack the courage of their convictions.

Here's an example. The conventional wisdom has always been that high turnout elections favor Democrats over Republicans. The premise of the conventional wisdom was that the population generally leans Democrat so if more of them would just vote, Democrats would win. Well, the 2004 election showed that conventional wisdom to be foolish. Turnout was high and Republicans won solidly.

Yglesias' argument assumes that Democratic policies are popular and would pass with ease in a Senate where the majority rules. Perhaps he's right on some issues but overall his premise is flawed because it believes the conventional wisdom that the American people tend to lean Democratic. The 2004 election casts significant doubt on that assumption as do the Republican's 10 year hold on the House and the party's ever increasing majority in the Senate.

Indeed, certain bedrock Republican issues would benefit from a filibuster-free Senate. Large majorities in the population typically favor the kind of small restrictions on abortion advanced by Republicans in recent years. They may come down on keeping abortion legal but they are not shy about being willing to place restrictions on that right. Imagine how much easier it would be to pass legislation like parental notification, waiting periods, and informed choice, without a vocal minority of hard-core pro-choice absolutists using the filibuster. The recent Terri Schiavo incident also reveals the existence of a majority in the population that would favor more protections for patients like Schiavo whose life exists at the sufferance of others. Gun legislation that slants in favor of protecting Americans' Second Amendment Rights would have an easier time of it as well.

Finally, though, the question is, what's wrong with democracy taking over the Senate? Let our political parties fight it out for majority victories and may the party with the better ideas win.

Republicans need not fear such a fight. It's past time for Republicans to reject the conventional wisdom of the past that believes Democrats are the natural majority in the United States. Republicans haven't held the Congress for 10 years, increased their majority in the Senate, and held the Presidency for two elections now because a majority of voters oppose them. It's time for Republicans to have confidence in their own political strength. As Dan Rather might say, "Courage."

-tdr