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. 

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.

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). 

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. 

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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