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Obama health care reconciliation: save your outrage for the unconstitutional filibuster

Forget President Obama's health care reconciliation. The real abuse of power is the filibuster. 

By Tom De Luca / March 3, 2010

New York

The debate over healthcare reform should have been about doctors, patients, insurance and drug companies, and coverage. Instead, much of the attention has been focused on a “preexisting condition” in the Senate: the filibuster.

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A filibuster allows a senator to delay or defeat legislation through endless talk – or merely the threat of it. That gives the minority breathtaking power to cause gridlock and discredit the majority by stopping it from pursuing the program it was elected on. That is exactly what 41 Senate Republicans are doing to 59 Democrats right now.

The filibuster has become so potent a political weapon that President Obama is reportedly approving the use of the controversial “reconciliation” process to pass healthcare reform. Under this method, Democrats could turn the reform bill into law with a simple majority of senators instead of the 60 now needed to end a filibuster. Critics are calling reconciliation an “abuse of power,” “undemocratic,” and “the nuclear option.” The real undemocratic abuse of power, however, is the present way in which the filibuster is used. 

While the use of a simple majority through reconciliation to pass legislation would restore constitutional sanity to the Senate, it does not go far enough. The Senate should rewrite the filibuster rule entirely. Full and thorough debate should be preserved, but the unconstitutional practice of requiring supermajorities to pass important legislation must be ended.  

Many of us first learned about the filibuster in “Mr. Smith Goes to Washington.” 

In that classic film, the filibuster is our quintessential American hero Sen. Jefferson Smith’s last hope of stopping corruption and symbolically saving the American republic.

In the real world of American politics today, however, the filibuster has become the weapon of choice to thwart a democratically elected majority on important legislation. Once rare, it’s now used routinely. Filibusters used to be hard work. Senators had to actually stand and talk in the Senate 24/7 until they literally dropped. Now they merely need to threaten a filibuster to stop legislation from ever coming to a vote. 

This usurpation is more than an unheroic partisan power grab. It is an unconstitutional change in which the entire Senate – and both parties – are complicitous. 

The Framers were explicit about those rare cases, such as constitutional amendments, in which supermajorities are required. They fashioned a document that assumed the majority rule principle for legislation, and based important arguments for the constitution’s ratification on that assumption. 

In “The Federalist No. 10,” James Madison defended the newly proposed constitution on the grounds that it created the kind of republic that could prevent factions from undermining liberty. He was most worried by the abusive potential of a majority faction and prescribed, not supermajority rule, but a large and strong republic supplemented by federalism and separation of powers. 

Minority factions could be more easily handled, he believed, by simply applying the “republican principle” of majority rule, enabling “the majority to defeat [the minority’s] sinister views by regular vote.” 

The filibuster also upends the Great Compromise of 1787 that gave us a bicameral legislature. Small-population states wanted congressional representation based on state equality, while large-population states wanted to base it on the number of inhabitants in a state (or the amount of taxes it contributed).