The Filibuster May Be Prudent. It Is Not Madisonian

Greg Weiner is Provost and Vice President for Academic Affairs at Assumption University. He is also a Visiting Scholar at the American Enterprise Institute. He is regular contributor for The Constitutionalist.

In a speech threatening a “scorched earth Senate” if Democrats abolish the filibuster, Mitch McConnell, the Republican Senate leader, invoked James Madison’s view of the body as an obstacle to “improper acts of legislation.” Yet Madison, who bitterly opposed the Senate’s undemocratic composition, almost certainly would have opposed stacking a supermajority rule for legislation on top of it. For him, the Senate’s distinctiveness lay in its six-year terms. They served the functioning of seasoning, not thwarting, majority rule.

Madison was a political realist accustomed to the give and take of politics. But he reached the limits of his conciliatory spirit at the Constitutional Convention when small states demanded the same number of votes in Congress as more populous ones. Madison, a majoritarian to his core, denounced that demand as “confessedly unjust.” It could, he continued, “never be admitted.”

But it was. The “Great Compromise” that saved the convention from collapse gave every state two Senate seats. Madison swallowed it, but reluctantly. In Federalist 62, the same essay McConnell deployed to defend the filibuster, the best Madison could muster by way of apology for the equality of states was that it was a raw political compromise with no theoretical basis. It did not, he allowed at his most generous, “appear to be without some reason.”

Yet he almost immediately backtracked even on that concession. Two paragraphs later, he denied that equal representation actually protected minority interests. There was no principle, he wrote, uniting the interests of small states simply because they were small. They might be as likely to block good measures as to impede hasty ones.

Still, Madison lost. The Senate is here, and it represents states equally. But its composition, not its procedures, protects minority views. Republican senators today hold half of the seats in the Senate despite representing 41,549,808 fewer Americans than Democratic senators do. The Senate already elevates their voices. McConnell is falling prey to the narcissism that typifies many political figures, who see the world through the eyes of the political leaders around them rather than those of the people they represent. There are 50 Republican senators, the argument goes, so they must be accommodated. But it is the public’s deliberate views that must be accommodated, not those of a few dozen people of any part.

Despite the Senate’s intrinsic elevation of minority voices, debates over the filibuster have given rise to a Madisonian fable: that the Senate’s purpose is the protection of minority parties. That would be news to Madison, who saw the Senate’s distinctiveness in something else entirely: its six-year terms. The Senate’s purpose was not to block majorities but rather to require them to cohere long enough to ensure they were based on reason rather than passion.

To Madison, the Senate was the nation’s designated driver. Acting through the Constitution, citizens—knowing their propensity to be swept up in momentary impulses—agree to empower senators to intercede before they do something foolish. “In these critical moments,” Madison explained in Federalist 63, “how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind?”

The premise of this unique role for senators is that people err when impassioned and, crucially, that passions are fleeting. Consequently, the role of senators is not to obstruct the public will, but rather to buy time so the people can stop and think. If passions are temporary by nature, senators can expect the public to have recovered from them before the next election.

Even as senators debate the filibuster, the premises that undergird this far more fundamental seasoning function of six-year terms have collapsed. Instant communication leaves no interval for the dissipation of passions. Pervasive, instantaneous media—combined with an unhealthy obsession with politics—make it possible to sustain passions. The permanent attention to politics, and the endless opportunities to opine on it, permit no respite from the glare. Little remains of the breather between elections that used to give senators space in which to compromise without instantly enraging the party faithful. For the growing caucus in Congress that is more interested in performing than in legislating, this spotlight is an unrelenting temptation.

Conceptually, the filibuster could facilitate deliberation by insisting on continued debate before legislation is passed. As practiced, it disables the engine instead. Rather than demanding actual debate, it requires even further accommodation to even fewer Americans than the composition of the Senate already entails. It encourages the majority to compromise without incentivizing the minority to reciprocate. Reforms like restoring the “talking filibuster”—which would force senators actually to hold the floor of the chamber in order to delay—would simply encourage the reflex to perform rather than deliberate.

Absent the filibuster, senators might even have more incentive for compromise and moderation. There has been much talk about an evenly divided Senate empowering moderates. But the filibuster relieves the minority party from the need to engage them while enabling the majority to posture because it knows no legislation will actually occur. Meanwhile, McConnell’s threat to require that senators be present for the body to conduct business might help to restore its deliberative function.

That Madison would not have supported the filibuster does not mean abolishing it is prudent. A closely divided House of Representatives and a tied Senate—both of which reflect a deeply polarized electorate—hardly prove that the filibuster obstructs the persistent views of the American people. There is no durable consensus to obstruct. It is difficult to construct a standard by which the filibuster could be reserved for especially important issues, which are difficult to define. Hillary Clinton’s suggestion that the filibuster be abolished for “constitutional matters,” for example, conceivably covers—or should—nearly all of the Senate’s business.

Moreover, McConnell is right to remind Democrats, as Democrats have previously reminded Republicans, that power is fleeting. Democrats may want the filibuster when a Republican Congress again coincides with a Republican president. The drive to abolish the filibuster in a 50-50 Senate may itself reflect the unhealthy primacy of the immediate over the enduring in American politics. So does the fact that the impetus for challenging the filibuster appears to be frustration over Republican opposition to a single bill, the For the People Act, regardless of how important Democrats believe it to be. The filibuster has grown into an institutional norm, and senators should be cautious about dismantling it.

But they should also be cautious about conscripting Madison, who called majority rule “the vital principle of republican government,” into its defense. For him, the Senate’s unique purpose was to encourage majorities to behave reasonably, not to prevent them from prevailing. The Senate’s composition already inhibits majority rule to an extent Madison resented. To facilitate reasonable majorities, a Madisonian revival in the Senate requires defusing the unrelenting drive for immediate political gratification and restoring the leisurely pace its six-year terms were designed to enable.

2 thoughts on “The Filibuster May Be Prudent. It Is Not Madisonian

  1. Do you think Madison would feel the same about a Senate that is now popularly elected and therefore no longer above the fray of electoral politics.

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