Let's just do away with inconvenient rules

Where have I heard that before? Oh, yeah! The last administration considered the Constitution and inconvenient rule. Other 'inconvenient rules' include the Electoral College and the Senate's filibuster rules.

Let me lay this out in the open. I believe in the electoral college. It is annoying sometimes unless you just want your presidential candidates hanging around in only major cities, then getting rid of it is a bad idea. It doesn't give undue influence. It just amplifies the interest of the smaller states so that they are not excluded from the process. You want to reform it? Fine. Let's do proportional elector selection like Maine and Nebraska. But don't eliminate it. It would just encourage the candidates to not move around and engage America. Like they do most of the time anyway.

The other issue is the filibuster. People like George Kenney are writing about how it's obstructionist and interfering with the timely passage of legislation. Let's address this.

First off, the Senate, intentionally, was not designed to 'quickly' pass legislation. The intent was to have it act as a brake on the presumed populist tendencies of the House of Representatives. It still serves a useful purpose in that function. Admittedly, much of what needs to be done now must be done quickly. The Senate will respond to this. They'd be idiots not to. But they are and should continue to be the legislative brake.

The filibuster, as rightly noted, is not a constitutional relic. The filibuster and the means of cutting it off, cloture, are product of Senate rules, Rule 22 to be specific. It serves a useful purpose in that it allows minority to have a voice on issues which otherwise a majority would be able to ignore them on. It use between 1841, it first use, and the 1960's was limited. That was because the rules specified that their must be a quorum and that the speakers continuously speak.

It's increased use, or threat of use, in recent years is due to rule changes over the last several decades that essentially permit 'procedural filibusters.' Basically, this is the ability to use the threat of a filibuster in an identical way to the actual filibuster itself. Therein lies our problem.

Mitch McConnell doesn't have to get anyone to stand up there and speak, he can merely use the threat of it to force a cloture vote and thus derail legislation. The absence of any meaningful effort required in order to filibuster is what is making it a joke. The minority must be made to actually conduct a 'real' filibuster if the rule is to continue. In it's current incarnation the rule has been abused beyond all redemption.

It used to be that a 2/3 majority was required to invoke cloture. Nevertheless, when that rule was in effect, it was rarely necessary because rarely was the necessary will there to actually filibuster! Now the requirement for cloture is lower but it is necessary more often simply because the Senate Majority Leader, in whom there is the power to actually force a traditional filibuster, does not exercise their right to do so.

Reform of the rule is a more appropriate answer. The party in power always hates the filibuster and the party out of power always loves the filibuster. It was only a few years ago that the Republicans were threatening to do away with the filibuster. Now they are clinging to it like it is a life raft.

Require the traditional form. Make the minority work for it. Will it take extra time? Yes. Will it reduce the number of incidences of filibustering? I believe it absolutely will.

Dispensing with the rule entirely will make the Senate more like the House than it should be. While I realize that some people see this as a good thing, I cannot. The Senate still needs the ability to function in it's Constitutional role as the legislative brake. Taking away the filibuster rule would impair that.

The world has changed but that does not mean that all of our traditional laws and institutions need to be thrown out the window automatically. Some of them may be inconvenient but there is a reason that they are inconvenient. Freedom itself is somewhat inconvenient to government. We aren't throwing that out. (Anymore, at least.)

Comments welcome,

Pat McGovern

It's got electoral votes. It's what politicians crave.