Who Will Protect Our Liberties if Democrats Kill the Filibuster?

The job will fall to state attorneys general.

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If the effort by progressives to terminate the filibuster succeeds—and Joe Biden’s evolving statements on the issue are a sign they are having some influence—another defense against radicalism will fall. Our constitutional liberties will lose another layer of protection. If that day comes, state attorneys general will stand as one of the last remaining protectors of our liberties and defenders of the law.

Our Founding Fathers designed the Constitution precisely to make it difficult to implement instantaneous revolutionary change. They worried that political factions might work together to oppress those with whom they disagree, and so they created separate branches of government—bicameralism, a federalist system, the Electoral College—and a political terrain that would incorporate a large sphere of interests that would constantly fight over, but never dominate, power.

Today, many progressives are attacking the institutions that prevent them from easily obtaining their desired outcomes. They have seriously proposed court packing to take over the Supreme Court, making Washington D.C. and Puerto Rico states so they can increase the number of Democratic senators, and getting rid of the Electoral College. It’s all about getting and keeping power.

No wonder the Senate filibuster also is under attack. It is an important tool for ensuring that legislation is measured, bipartisan, and constitutional. In other words, it can—and would be—used to pump the brakes on impassioned and imprudent legislation. 

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  1. Pete Vlahos

    Bring back state's rights. Change the filibuster only after if the 17th amendment is eliminated & state elected officials send Senators.

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      Pat Riot

      Can I presume that if, in the next election cycle, the Democrats won the majority of statehouses in the US that you'd reverse your stance?

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    Will Bates

    I’m in agreement that eliminating the filibuster is a bad idea, but this article is intellectually dishonest and lazy writing. This writer goes from the mindset and intent of the Founding Fathers straight into the ‘intent of the filibuster’ and had to do a headstand on words to get around having to say the following sentence:

    The filibuster is notbin the constitution, and was expressly excluded by the Founding Fathers.

    Do us a favor....don’t bring in the constitution and its authors when talking about the filibuster. It is counterproductive and unnecessary.

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      Pat Riot

      Not only is the filibuster not in the Constitution, it's use as a defacto 60 vote passing threshold for the Senate is only about 20 years old.

      How stupid do these people think we are?

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    Devin H

    I'm probably more pro-to-neutral on the filibuster than against it, but it seems odd that the author defends it from the start by pointing to the founders and their reasoning in how and why they wrote the Constitution. The filibuster is not part of the Constitution, thus the founders must not have seen the utility in it for their aims.

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  4. Shaybult

    Leaving aside the question of whether the filibuster should or should not be reformed/eliminated whatever - I am really tired of people invoking the founding fathers when talking about it. "Our Founding Fathers designed the Constitution precisely to make it difficult to implement instantaneous revolutionary change." Yes, that's true, they did. But you know what they didn't do? Include the filibuster in the constitution. Apparently they thought a vote of 50% +1 was fine and dandy. So leave them out of the argument.

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      Will Bates

      Thank you! Guess I shouldve read further down before I posted.

      This writer really putvthought into his phrasing to avoid acknowledging that fact.

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      1. Shaybult

        You were much more eloquent than I was in making the point.

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      Devin H

      It seems I'm not the only one who thought this!

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    Rochejaquelein

    The fillibuster is the least of our problems. The problem is that the GOP is gaming the distortions in the system deliberately. One of the things that used to define Conservatism as an ideology has been a deep skepticism about rapid change and the assumption that we are all dwarves standing on the shoulder of giants, etc. and should honor the wisdom of accumulated experience.

    The two most successful major* countries in the world over the last couple of hundred years, I would argue, are the UK and the US. Both of them have always had political parties or movements that have been willing to fight to slow down "progress" and preserve institutions, but ultimately also willing to embrace change. So the Tories (broadly defined) slowed down electoral reform and the complete transformation of the House of Lords but ultimately embraced the new order and moved on.

    The Constitution and the vision of the founders is a wonderful thing, and they got the big issues right. However, some of their ideas simply didn't work well and were abandoned -- Republican virtue could not, as it turned out, tame political faction and the original mechanics for the Senate were a disaster.

    The electoral college and the Senate representative formula served the country well for a very long time, even though few political scientists would design a system like it operating from a clean slate. Sometimes happy accidents and ramshackle tradition works better than icy rationality: see, e.g., France on its Fifth Republic and trending towards a possible Sixth while the UK lumbers on with woolsacks and red boxes and green benches (albeit perhaps soon without Scotland).

    But sometimes those happy accidents and traditional arrangements only work because people recognize how fragile they are and try not to abuse them. For a long time after the Civil War and deep into the postwar world the distortive effect of the Civil War made for odd politics. There was a strong Midwestern and Yankee WASP tradition of Republican loyalty, and a ferocious historically driven loyalty of the South to the Democrats. FDR's largesse made the Dems especially competitive in farm country for a generation and Civil Rights changed political alignments, but did so slowly.

    The net effect of all of this was that both parties had some low population states in their column grotesquely overrepresented in the Senate and both parties had big blocks of structurally overrepresented rural areas they could turn to and that became increasingly up for grabs over time. The historical biases towards small states and rural areas caused by the electoral college and Senate allocation was obvious, but didn't massively benefit either party consistently. It took an unusual event, like prohibition or the candidacy of Al Smith, to get the rural South and the flat Protestant states fully aligned against the cities. The biases didn't matter that much and the system worked.

    Its pretty clear that the Palin-Trump era Republican party blundered into a situation where all of the sudden the bulk of the small massively overrepresented states were firmly in, or gettable into, their column and the Ds only had DE, VT and RI in that category. The massive and to many inexplicable turn of much of rural America towards the politics of resentment and the Republican willing to pander to it meant the GOP could possibly win narrow majorities in a host of states and benefit for the more minor systemic rural overrepresentation over time. Meanwhile, Democrat strength in cities (and now suburbs) would win them crushing but useless majorities in a handful of big electoral college states and urban districts. Both sides gerrymander, but its easier to Gerrymander a concentration in a city that will neuter the other party in State and national district elections.

    Most of the above happened accidentally -- I don't think the GOP ever affirmatively decided in the Bush years to start shedding college educated voters and build its rural appeal. It certainly never gave up on cities or places like California. But in the last eight years, the party pretty explicitly *has* decided to declare war on cities, write off the possibility of a comeback in places like Illinois and California and build a party machine built on a base strategy that deliberately targets the anti-democratic elements of our historical system, and the most distorted elements of it at that. And there is no indication that the new "national populist" TrumpGOP intends to stop this approach.

    I live in California. I dropped my R registration in January. TrumpGOP raised my taxes, did so substantially and explicitly and loudly proclaimed they were doing so to punish the hated coastal blue states. I saw *my* tax dollars go in wave after wave to soybean farmers in Iowa? Why? Because of the predictable effects of the trade war. A trade war that Iowa enthusiastically voted for. Twice. Iowa has a ludicrously disproportionate role in American politics because of the caucus tradition, which isn't in the Constitution but I could generally get behind in the past as a good tradition that has served us well, dwarves standing on the shoulders of giants, etc.. Iowa get two Senators to California's two, as per the Constitution. Millions of votes in California have no effect whatsoever, and we wait on tenterhooks to count tens of thousands in Iowa. This isn't an occasional accident now -- this is the foreseeable future of the GOP deliberately exploiting the system.

    This is all according to the rules. It is in accordance with the Constitution. It accords with the wisdom of the past, etc. But rules change, particularly when they are gamed and abused to make a mockery of the game and leave the majority continually disappointed. The Republican party is doing the equivalent of sending every pitcher out with a concealed tube of vaseline and every batter out with cork, and isn't even trying to win the game any other way. The natural effect of this decision is to further poison and harden the divisions in our society and undermine faith in democracy (and this is putting aside the absolutely insane and evil lies about the election and "voter fraud" needed to conceal that even with every rural non-voter turned out the new blood and soil TrumpGOP is a minority party).

    At a certain point you keep playing this way either the rules change or the league changes.

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      Kmregan7

      Wonderful comment! Should be featured!

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      Will Bates

      Well said.

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      Logical

      I recommend wholeheartedly to TD editors to publish this comment as a separate column.

      I cannot improve on this. Thanks Andy T.

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      Pat Riot

      Excellent write up.

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    Don S.

    What is really funny about the debate on the filibuster is that there is one way of getting rid of it that I don't believe has ever been tried before - for the minority party to offer the majority party support for getting rid of the rule. I don't think the majority of Republican senators would have argued much with the Democrats about getting rid of it if the Democrats had offered to do away with it when they were the minority party - or vice versa.

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      wj

      Similarly, whether it stays as is or is removed/modified depends almost entirely on how the minority chooses to use it. If they use it sparingly, and only on matters of the highest priority, there will be little reason for the majority to go nuclear.

      If they use it as a blanket veto to thwart the majority at every turn, they will have invited filibuster reform/removal.

      Ironically, the only thing that has a hope right now of bringing about bi-partisan compromise, isn't really the threat of the filibuster, it's the threat of *removing* the filibuster.

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    David Goldstein

    I'm really not convinced that eliminating the filibuster, rather than keeping it, is a threat to liberty. In an intractably polarized Congress, the filibuster ensures that no controversial legislation that is not subject to reconciliation cannot pass. Sure, this means any legislation that chips away at certain liberties will be easily blocked. But fairly often, passing legislation is the only way to *protect* those same liberties. I think, with modern partisan polarization, the Senate wouldn't be able to pass a bill like RFRA, which is arguably a more effective protector of religious liberty than the First Amendment. Throughout the 19th and 20th centuries, the filibuster was used in opposition to individual liberty, rather than as a protector of it. The filibuster was used to stymie the Civil Rights Act and the Voting Rights Act, not to mention anti-lynching legislation, passage of which was necessary to secure the individual liberty of Black Americans throughout the country. Legislation, rather than the constitution, was necessary to create §1983, which is the main vehicle for suing in court to vindicate your civil liberties when violated by government officials.

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  8. Michelle C

    I agree with this author’s concerns and I’m trying to square it with David French telling people not to vote for Trump because he is “a very bad man” and also stating in a debate with Eric M. that people need to calm down because “our liberty isn’t that fragile.” For what it’s worth, I ended up not voting for Trump. I also respect French highly. But at the same time, why are Dispatch writers so confident that our liberties aren’t fragile under full control of the Democratic Party?

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      Pat Riot

      It's a matter of degree.

      Democrats propose adding red tape to our gun purchases and raising our taxes (and by "our" I mean the folks here at The Club) and allowing women to have abortions.

      Meanwhile, Republicans defended the 1/6 insurrection and most of its voting base despise the Supreme Court and the Constitutional process for failing to place Trump in the White House for a second term.

      One party is moving us in a somewhat more welfare-statey direction, which is a process that has been going on for the last 80 years, and the other wants to abolish the Constitution right now and doesn't consider people outside of its party to be real Americans.

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      1. Michelle C

        You don’t think Democrats want to abolish the Constitution?

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          Kmregan7

          Not so far.....not going to say in can't ever happen, but Democrats weren't the ones who supported (and still support) a leader of their party who lied to the American people and tried to overthrow an election. Nor are they the party passing numerous election laws around the country designed to "fix" something that isn't a huge problem and is based on the "big lie" (That Trump really won).

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          Pat Riot

          Bend it to fit the welfare state? Sure. Break it to its foundations like Trump (and now the Republicans) demand? No way.

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          Will Bates

          Is this a serious question? Is that you, Q?

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          1. Michelle C

            Keep in mind I’m currently reading headlines about Democrats introducing a bill to pack the Supreme Court with 4 justices. So I could do without the sarcastic remarks. When I dialogue online, it is with civility and sincerity.

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          2. Michelle C

            I’m sorry? Yes, it was serious. I am genuinely wondering if Pat thinks Democrats respect the Constitution more than Republicans right now.

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        Kmregan7

        Now, now.....there are people INSIDE of the party that are also not considered "real Americans" too. It's like the Christians who criticize other Christians....."well, they're not TRUE Christians"

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    wj

    Alexander Hamilton, Federalist 22 (https://avalon.law.yale.edu/18th_century/fed22.asp):
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    But this is not all: what at first sight may seem a remedy, is, in reality, a poison. To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. Congress, from the nonattendance of a few States, have been frequently in the situation of a Polish diet, where a single VOTE has been sufficient to put a stop to all their movements. A sixtieth part of the Union, which is about the proportion of Delaware and Rhode Island, has several times been able to oppose an entire bar to its operations. This is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory. The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy.

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    Pat Riot

    "Our constitutional liberties will lose another layer of protection."

    The author shouldn't invoke the Constitution when he clearly has never read it nor understands it. The filibuster is nowhere in the Constitution and it very clearly states that normal laws pass by a simple majority in the Senate.

    And perhaps the author can explain to us why justices Kavanaugh and Barrett are affronts to our liberty since they were placed on the Supreme Court by a simple majority.

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