In 1865, Mary Mapes Dodge published her best-selling novel “Hans Brinker, or, the Silver Skates: A Story of Life in Holland.” It contained a separate short story about Peter, “The Hero of Haarlem,” who saved his Dutch village from a flood by putting his finger in the leaking dike that was holding back the sea until he was relieved by fellow townsmen in the morning.
Central to the Democratic majority’s agenda of making the minority status of Republicans permanent are three measures: killing the filibuster; enlarging (“packing”) the Supreme Court (to 13 justices from the current nine); and adding Puerto Rico and Washington, D.C., as states, effectively giving the Democrats four more seats in the Senate. Retaining the filibuster will ensure that these latter two measures never happen.
But the life of the filibuster, the requirement that legislation in the Senate pass by a threshold of 60 votes, hangs by a thread. The filibuster is a Senate rule, not a constitutional provision, and can be overturned by a simple majority Senate vote. Democrats and Republicans each have 50 seats in the current Senate. If there is a tie vote on ending the filibuster, Vice President Kamala Harris can break the tie and kill the filibuster. If, however, just one Democrat defects, the measure would fail and the filibuster — and our republic, I contend — would be saved.
One Democratic defector today is the junior senator from Arizona, Krysten Sinema. Her courageous statement opposing these three measures, particularly on the filibuster, is steadfast. “When you have a place that is broken ... I don’t think the solution is to erode the rules. ... I think the solution is for senators ... to work together, which is what the country wants.”
The Founding Fathers could not agree more. James Madison, the primary author of the Constitution, was wary of a purely democratic system of government without safeguards against two defects. One was letting democratic public passions of the moment stampede legislators into passing unwise bills. He thought that impulsive measures passed by the popularly responsive House of Representatives could be cooled by the more dispassionate Senate with the staggered six-year terms of its members where only one-third of the full Senate body is up for election every two years.
His other fear was the tyranny that could come from simple majority votes in the legislature. Over time, if all it took to decide pivotal national issues were simple majority votes, in Madison’s view, a partisan majority could turn the country into a one-party dictatorship, destroying our democracy. Although the Constitution is silent on the filibuster, it does require super majorities of two-thirds votes on matters of national importance to ensure that they would be decided by a bipartisan national consensus. The Constitution identifies five such issues: convictions by the Senate of federal officials impeached by the House, including the president; expelling a member of Congress; ratifying treaties; overriding a presidential veto of congressionally approved legislation; and amending the Constitution.
The filibuster in the Senate became an added guarantee for including electoral minorities in national political deliberations. The origin of the filibuster dates to 1805. At the time, Vice President Aaron Burr proposed that the parliamentary practice of cutting off debate by “moving the previous question” be eliminated. Such a motion, if passed by simple majority vote, forced an immediate vote on the measure being debated. Burr pointed out that this practice did not give everyone a chance to speak and had the effect of disenfranchising minority delegates. Like Madison, Burr feared its continued use could give rise to tyrannies of the majority. The Senate agreed, thereby opening the path to the filibuster.
The actual use of the filibuster, the legislative minority’s attempt to talk a measure to death and block its passage, did not occur until the 1830s when President Andrew Jackson’s proposal for a national bank was withdrawn after extensive Senate speeches opposed it. In the 19th and 20th centuries, several, mostly Democratic senators used the filibuster to delay civil rights legislation. The filibuster assumed its modern shape in 1917, when the Senate introduced cloture, the move to cut off all debate, including filibusters, by a two-thirds vote. The principle of cloture, in effect, meant that all legislation required at least a two-thirds vote to pass in the Senate. This established almost a mandatory bipartisanship for the Senate. In 1975, the cloture threshold was reduced to 60 votes.
As our politics have become polarized, responsibility for cutting back on the filibuster can be laid at the feet of both parties. In 2013, Democrats eliminated the filibuster threshold for all federal appointments, except for Supreme Court justices. In 2017, Republicans eliminated the filibuster threshold for Supreme Court nominations, as well, enabling President Trump to appoint three conservatives to the court. Now the Democrats want to eliminate the filibuster threshold entirely.
Let us pray that Sen. Sinema can keep her finger in the dam until morning.