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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. 

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The deal was to have both: a Senate and a House of Representatives. In granting an extraconstitutional veto to a minority faction of senators, the filibuster increases their (and their states’) power relative to that of other senators (and states). It also upsets the balance of power with the House and its members. The filibuster undermines the state equality and proportionality principles at the same time. 

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Debates over when “extraordinary majorities” would be required were part of the horse-trading that led to final agreement on the constitution. Southern states, for example, depended on agricultural exports and some wanted a legislative supermajority to be required for passage of laws that affected navigation, something the New England shipping states opposed. They traded this demand away for a 20-year guarantee of continuance of the slave trade and a ban on export taxes. Because sectional and state interests played an important role in these deals and compromises, it is inconceivable that the back door would have been left open for supermajorities to sneak in. 

Article I, Section 5 offers filibuster-defenders one slim reed to grasp: that “Each House may determine the rules of its proceedings.” However, it also says that each senator shall have “one vote” and that “a majority of each [House] shall constitute a quorum to do business.” The filibuster both deviates from the equality of power idea intrinsic to the “one vote” principle, and changes the meaning of the words “to do business” – unless they were intended by the Founders to mean “do nothing but talk.” 

The filibuster “rule” is in reality not a rule at all. It is a structural change to the meaning of the Constitution itself, something even a unanimous Senate is not empowered to do. Its defenders should ask themselves this question: If the filibuster “rule” were written into the constitution’s draft, would the constitution have been ratified? Without a new round of debates and compromises, the answer is no. 

As the president of the Senate, Vice President Joe Biden should rule unconstitutional any use of the filibuster to block major legislation. As a political matter, such a move would be highly controversial, but as a constitutional matter, it merely restores the Framers’ intent regarding using majority votes to move legislation in each house of congress – something conservatives should support. After all, the status quo distorts the Constitution. And it robs the vice president of the only real power he has: to cast the tiebreaking vote when the Senate is “equally divided,” an impossibility if the meaningful vote is the one that requires 60 senators to end debate. 

If Mr. Biden takes this step and gets attacked, it would be a perfect time to treat his Senate colleagues to a filibuster of his own, by reading to them, in its entirety, “The Federalist No. 51,” which explains how to avoid excessive concentration of power: “Ambition must be made to counteract ambition,” Madison wrote. “The interest of the man must be connected with the constitutional rights of the place.” In protecting his own power from Senate usurpation, Biden would also be fulfilling Madison’s constitutional plan. Mr. Smith would be very proud. But not as proud as Madison.

Tom De Luca, a professor of political science at Fordham University, is coauthor of “Liars! Cheaters! Evildoers! Demonization and the End of Civil Debate in American Politics.”


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