The Filibuster and the Constitution

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.This piece by Matt Yglesias needs to be read in its entirety.

Here’s some abject nonsense from Judd Gregg as he tries to foster the misperception that the de facto supermajority created by routine filibustering is part of the Framer’s vision of the constitution:

Why did they choose that bill called reconciliation to do this? Or why will they? Because under the Senate rules, anything that comes across the floor of the Senate requires 60 votes to pass. It’s called the filibuster. That’s the way the Senate was structured. The Senate was structured to be the place where bills which rushed through the House because they have a lot of rules that limit debate and allow people to pass bills quickly, but they don’t have any rule in the House called the filibuster which allows people to slow things down.

The Founding Fathers realized when they structured this they wanted checks and balances. They didn’t want things rushed through. They saw the parliamentary system. They knew it didn’t work. So they set up the place, as George Washington described it, where you take the hot coffee out of the cup and you pour it into the saucer and you let it cool a little bit and you let people look at it and make sure it’s done correctly. That’s why we have the 60-vote situation over here in the Senate to require that things get full consideration.

It’s true that the Founding Fathers wanted checks and balances, but this is why we have bicameralism and presidential veto power. Those are the checks. The filibuster rule is not in the constitution. But since the Founding Fathers did specify supermajorities to override a Presidential veto and to ratify a treaty, presumably there would have written a supermajority rule into the ordinary legislative process if that’s what they’d wanted to do. I don’t think “the Founders wanted it this way” should carry a ton of weight in our arguments, but it’s very clear that the Founders didn’t intend the Senate to vote by supermajority; if they’d wanted that, they would have written the constitution that way.

Meanwhile, just to point out that Gregg is an idiot, where on earth has he gotten the idea that the Founding Fathers “saw the parliamentary system” and “knew it didn’t work?” There were no countries operating on a modern parliamentary system when the constitution was written. And why doesn’t it work? It seems to work in Australia, Belgium, Canada, Denmark, Finland, Germany, Hungary, India, Japan, Korea, etc.

Arguably what history has shown is that the “strong president” system used in the United States doesn’t work. It’s worked out okay for us (despite that Civil War business) so far, but the vast majority of enduring stable democracies go parliamentary or semi-presidential systems.

Pure presidential systems … tend to be associated with periodic collapse into dictatorship. Considerable disagreement exists, however, as to whether this is a causal relationship or not. Certainly I think it’s noteworthy that US occupation forces in postwar Germany, Austria, Italy, and Japan left parliamentary systems behind and that we urged parliamentary systems on postwar Iraq and Afghanistan (though in Afghanistan Pashto elites ultimately forced a presidential system). In practice, US officials seem to know better than to indulge in the patriotic myth that our constitution is the greatest system of government ever devised.

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