How I Learned to Stop Worrying and Love the Nuclear Option

The Senate occupies a unique place as the fulcrum of the constitutional order. The filibuster does not occupy a unique place as the fulcrum of the Senate. The course the body took Thursday—which limited the use of the device in presidential nominations—will be added to the growing list of precedents to be avenged in due course, but the filibuster should not be inflated to quasi-constitutional status it does not, and probably ought not, enjoy.

Mr. SmithThe Senate was designed to operate as part of a constitutional regime rooted in Madisonian majority rule. The catch is the modifier “Madisonian,” which is a synonym for “deliberate.” Enhanced deliberation, Madison wrote, was to be facilitated by the key distinction between the House and Senate, which is the latter’s six-year terms, not any super-majority requirement for legislating. The problem is that the press of instantaneous communication and the permanent and nationalized campaigns for the majority have eradicated the distance that once separated senators from constituents, while the erosion of institutional culture has robbed the Senate of much of its onetime deliberative purpose. The filibuster—the bulk of which nonetheless remains intact after the detonation of the nuclear option Thursday—is a sideshow to these vastly more serious challenges.

Indeed, it has been years since the filibuster performed any deliberative function, encouraged any moderation or registered intensity of views in any serious fashion. It has simply become a tool for requiring 60 votes to transact even routine and noncontroversial business in the Senate. To those who wish government simply to do less, that might sound enticing, but for the fact that causing government to do less often requires the Senate to act to dislodge the status quo. Just as Democrats would do well to recall that they will someday return to the minority, Republicans, despair being a sin, might entertain the hope they will occupy the majority someday and wish to cut taxes, spending or regulations—all of which could be impeded by a recalcitrant bloc of 40 under the regnant ethos of the filibuster.

The filibuster has become so associated in the public imagination with the unique constitutional role of the Senate that it is now largely forgotten that Madison, the institution’s chief theorist, came near to walking out of the Philadelphia convention over the issue of majority rule in the upper chamber. He described the equality of state representation in the Senate as manifestly unjust, so much so that Madison, normally a ready compromiser, approached the precipice of aborting the entire constitutional project over that principle—the same one implicated by the routine use of the filibuster.

Similarly, the following passage from his Federalist 63, the paper that elucidates the purpose of the Senate’s longer terms, endorses majority rule even while emphasizing the decisive importance of deliberation:

As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers: so there are particular moments in public affairs, when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn.

Note that the deliberate sense both “ought” and “will” prevail. The Senate’s particular role is to inhibit popular passions until such time as reason takes hold. But this inhibition was possible because of the Senate’s longer terms, which provided space in which its members could take temporarily unpopular positions:

In these critical moments, 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 mediated by the people against themselves, until reason, justice, and truth, can regain their authority over the public mind?

Observe that it is the job of Senators to “suspend the blow” temporarily, not to block majority will. Supermajority requirements—in the filibuster’s case these pertain to ordinary legislation, not constitutional moments—serve the latter purpose. A functional 60-vote rule for transacting business fosters deliberation only if it forces compromise, which there is little evidence it has done, especially given the Senate’s toxicity in recent years. In any event, the Senate’s role was never to serve as a blocking entity—a cooling one, to be sure, but not a showstopper.

The filibuster, put otherwise, simply is not inherently associated with the purposes Madison lays out for the Senate. The rarity with which it was once used, even in the Senate’s heyday, calls into question the notion that it is somehow integral to the body’s proper functioning. The institutional culture, now badly eroded, is a far more important factor in the Senate’s constitutional corrosion. So is the vanished distance between Senators and voters. If the filibuster could restore the dynamics thereby lost, its partial demise might warrant more mourning. But there is no reason to think it has served those purposes, or will.

None of this, incidentally, is to purchase stock in the silly argument that filibusters of presidential nominees, especially judicial nominees, are somehow inherently less legitimate than filibusters of other measures. “Advise and consent” is a meaningful authority. The Senate is not the executive branch’s personnel department; its job is not merely to inspect the resumes and assure the qualifications of nominees. Especially with respect to the judiciary, everybody knows the President considers the philosophy of nominees, and the Senate is perfectly entitled to do so as well. But just as there is no civil right to be confirmed to the federal bench, the minority party—and that will be Democrats someday—has no entitlement to prevail in such battles. If Americans want divided government that compels the president to consult a Senate of the opposite party, they have the option to vote for it. In three successive elections, they have not.

The more difficult question is how to restore the deliberative function of the Senate. For Madison, as for those who debated the topic at Philadelphia, that was inextricably linked with the length of its terms. Recovering the virtues associated with the resulting distance is the key to reclaiming the Senate as the fulcrum of the constitutional regime. The filibuster, especially not in the limited sense with which it was dealt Thursday, is not. Consequently, the nuclear option is unlikely to be remembered as the explosive event it contemporarily seems to be.

Greg Weiner

Greg Weiner, who teaches political science at Assumption College, is the author of Madison’s Metronome: The Constitution, Majority Rule and the Tempo of American Politics. His book American Burke: The Uncommon Liberalism of Daniel Patrick Moynihan will be published by University Press of Kansas in early 2015.

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Comments

  1. Brandon says

    I would think that another “key distinction” between the Senate and House is that Senators were not supposed to be elected by popular majorities, but rather by state legislatures. Surprising that didn’t factor into your analysis . . .

    • Greg Weiner says

      Thanks for the comment. You raise a fair point, although Madison was deeply skeptical of appointment by the state legislatures (see his June 7 Convention speech on this topic). He did seem to want some form of filtered election emanating from popular majorities but nonetheless saw senators as ultimately accountable to the people. Still, we seem to agree on the central fact, which is collapse of the the proper constitutional distance between senators and constituents. You are correct that I could have emphasized the mode of election in preserving that space.

      • Kevin R. Hardwick says

        Greg–

        The question of Brandon raises–what should the mode of representation in the Senate be?–is a matter of means, not ends. The larger questions are “What do we want the Senate to be?” and “What is the function of the Senate in our Republic?” The mode of representation matters to the extent that it best fits the larger purposes and functions of the Senate.

        There is also the strictly historical question of whether or not the mode of representation for the Senate–the method of choosing Senators–adopted by the Philadelphia Convention and institutionalized in the Constitution, was one of which Madison approved.

        If we are talking about the Madison of 1787, the answer pretty clearly is that he did not in the least bit approve. He wanted Senators accountable directly to the people, and not mediated by the State governments.

        But in 1788, when he wrote his contributions to the FEDERALIST and then argued for the Constitution as written in the Virginia Convention of 1788, he seems to have changed his mind. By that point, the advantages of Federalism became more apparent to him.

        A bit more than a decade later, in the Virginia Resolves of 1798 and especially in his defense of the resolutions in the Virginia Report of 1800, Madison articulated a somewhat muddy but nonetheless affirmative role for the States. I have not read those documents for Madison’s mature views on the proper mode of representation in the Senate and honestly do not know to what degree he had modified his views from those he articulated in Philadelphia in 1787–I would value much reading your thoughts on that.

        I just finished teaching Watkins on the Virginia and Kentucky Resolutions–surprisingly, the only recent and in-print monograph on the subject I could find. Have you read his book? It strikes me that that book might make an apt book review for this site–I would certainly much appreciate reading your assessment of it.

        All best wishes,
        Kevin

        • Greg Weiner says

          Kevin,

          Pardon my delayed reply. I’ve not read Watkins’ book but will look it up. The one point I would make about Madison as Publius is that the representation of states in the Senate, at least on equal terms, is the only constitutional compromise of which I’m aware that he declines to defend in The Federalist, shunting it aside in #62 as a naked political accommodation that it would be “superfluous to try, by the standard of theory”–so it seems to me he was still smarting at that point. As to the Virginia Resolutions, having been written (if I correctly recall) almost immediately upon his receipt of a draft of Jefferson’s KY version, they seem to me an attempt to moderate a more radical proposal–and even then the VA Report of 1800 comes off as an attempt, not altogether successful, to return the genie to the bottle. So I’m not convinced that Madison ever felt comfortable with the direct agency of the states in the national government, which was, after all, the very problem the entire constitutional project was intended to correct. That is not, however, to say it was without its benefits and that the 17th amendment was therefore without its costs. Moreover, the fact that Madison proposed some form of filtered representation in the Senate indicates he wanted the public views refined and enlarged even more explicitly in the upper body. So I think Brandon’s point stands. I do not mean to suggest Madison was not a proponent of federalism; only that he saw this being preserved through the limitation of the national government to the enumerated powers, through what he thought to be its natural political weakness vis-a-vis the states (see Federalist 44 and 46 on this point) and perhaps through the medium of the Supreme Court (per Federalist 39). In any case, it sounds like I have some reading to do. Thanks for the reference to Watkins.

    • James says

      I second that.

      The ‘nuclear’ option being exercised would not bother me in the least had not the 17th amendment been enacted.

      The 17th amendment and now this nuclear option takes us from the constitutional republic that was initially created to a simple democracy. The nuclear option, while not a constitutional provision, was a vestige of the concept that a simple majority could not trample the minority. That is gone now and so it really is a big deal.

  2. gabe says

    Interesting little tidbit I discovered a short while ago – by the time of the passage of the 17th amendment, 26 of the states had, in fact, instituted some form of “direct” election of Senators, albeit through the process of having electors (think electoral college) that were sworn to abide by popular vote.

    The real question, however, is this: Was there an appreciable difference between pre- and post 17th Amendment in the manner in which Senators supported their respective States and balanced that against the “national interest?”
    One would expect so – but I do not know where to look? do you?

    I think Greg is certainly correct in linking changes in character and frequency of the filibuster to the post 17th US Senate – but is there more? Has not a truly national media had an effect as well as truly national fundraising for all national offices. Heck, one could even argue that with the rise (predominance, anyone?) of special interest groups, this was bound to happen.
    anyway, just some thoughts.

    take care
    gabe

  3. Jim says

    The 16th and 17th amendments are an assault on states’ rights.

    Before the 17th amendment senators had the responsibility of getting input and approval from the state legislatures before acting upon a bill. How would the state legislature of Oregon feel about building do nothing monuments to Robert Byrd of West Virginia? Senators that didn’t follow the direction of the state legislatures didn’t serve more than one term. Sometimes they didn’t even get to finish their term.

    What impact has direct elections had on the senate? Does the individual citizen have any real impact on a senator in a state with millions of voters. Furthermore, millions of dollars are poured into senate elections from OUTSIDE of the state, they allegedly represent. How does that help the individual’s voice be heard?

    The secular golden rule, “He who has the gold, makes the rules.”

    The 16th amendment took the gold from the people and transferred it directly to the federal government. The federal government now dictates educational standards, speed limits, healthcare programs and many other programs that have no foundation in the Constitution. They bribe the states to fall in line through the massive amount of tax revenues they collect and then redistribute. Constitutional limits mean little, because the federal government has the money (collected or borrowed) to do what they want.

  4. Karl says

    Gabe points out a huge difference for liberty in practice today. The national media and national fundraising has blown the doors off the Senate and all elections. Both represent corporate power. The media was more independent in times past and our founders never imagined its bias being so alien to individual rights. Yes repeal the 17th amendment but we need a new amendment to restrict the influence of special interest groups in all government elections. Corporation power is where the problem resides. The legal rights to incorporate and act with the same rights granted to an individual is wrong. Redefine the corporation and you redefine liberty.

    • gabe says

      Karl:
      I have thought that a change to the First Amendment (yes, actually the 1st) would serve us well. It would be a political rights amendment:

      A Proposed Amendment:
      Section 1: “The consent to, and active participation of the Citizenry in the governing process being necessary to the continuance of a just representative government, the CONGRESS shall make no law abridging the right of Individual United States Citizens to freely contribute, in any manner of the Citizens choosing, to campaigns, candidates or political parties advancing candidates for any electoral Federal Office.”
      Section 2: The influence of faction, having been shown to be detrimental to the appropriate exercise of the individual Citizens consent and participation in the governing process, the CONGRESS shall make no law respecting (allowing?) the right (practice, perhaps?) of corporations, fraternal or religious organizations, unions, or any other aggregate of persons to contribute, in any manner whatsoever, to campaigns, candidates or political parties advancing candidates for electoral Federal Office; nor shall the Congress respect the right of any person other than an individual United States Citizen to so participate.
      Section 3: Candidates, campaigns and political parties advancing candidates for electoral Federal Office shall be prohibited from accepting the contributions, both monetary and in-kind, from any person or entity proscribed from so doing in Section 2 of this amendment; nor may any Elected Representative of the People, any Official appointed with the Consent of the Senate, or any other agent of the US government accept such contributions during their tenure in office.
      Section 4: The Congress shall pass legislation conducive to these ends. Violations of this amendment shall be punishable by such fine or imprisonment as the Congress shall deem appropriate. Elected Representatives found in violation of this amendment by the Congress shall, in addition, also be impeached and removed from Office.
      Section 5: Nothing in this amendment shall be construed to limit the right of any citizen or organization to petition for a redress of grievances as guaranteed by the First Amendment to this Constitution.
      (There are problems with the wording, I know. As an example, I am not sure what the impact would be on think tanks, etc. but it could be worked out by an able legal mind).
      Put aside for the moment my poor legal syntax, etc and consider what the effect of this may be.
      a) Rather than limiting the citizens’ political speech, it would enhance and hopefully remove the Courts and the Legislature’s discretion in setting limits on participation in terms of money, time and the timing of such participation. Why can I not contribute my entire savings to a candidate / party of my choice if I so choose? Why can I not produce broadsheets, movies, etc if I so choose? Each individual citizen may be free to act according to how their reason propels them without regard to some outside agency desirous of determining what is proper. Of course, it is as an individual United States Citizen, that one is entitled to do so. This is our birthright, is it not and is guaranteed by both positive and constitutional law.
      b) One may argue that this would give an edge to the wealthy. Do they not already possess such advantage as to make the new advantage indistinguishable from the old. However, under this scheme, they would be equal to every other citizen in that they have but one vote that the Candidate can court and win. Currently, the candidate can be assured of the vast majority of “organizational” votes such as unions, interest groups, etc. Ultimately, the votes of the general populace, if actively engaged may counter, or even prevail over the rich man’s vote / money.
      This is so even though a large segment of the “organization” voters would not individually support many of the positions that candidates receiving organization dollars propose or support.
      c) Perhaps this is somewhat fanciful (no more so than the idea of an amendment) but it would embed in the Constitution a clear inference that this is an egalitarian not an equalitarian democracy. If one is able to contribute based upon one’s mean, without limit, would this not, indicate a positivist approval of the inequality of condition that is the unavoidable outcome of differing capabilities, talents and virtue operating in a system of equal opportunities.
      d) To the extent that it would limit US Senator’s dependence upon corporate / union “largesse” would it not get us ever so slightly back toward the conception of US Senators that Harry Jaffa has termed “States Diplomats” representing their home State Peoples and interests rather than some corporate or union entity.
      just a thought, guys

      take care
      gabe

  5. R Richard Schweitzer says

    Perhaps we should pause for a moment and consider the broader scope in the development of our social order (Society, if you prefer).

    In that vein, what is currently occurring within the legislative branch of our most extensive mechanism of government (the federal government), is simply another natural stage in what has become a long-term transition from the republican parliamentary mode to “popular” government.

    Counterintuitively, “popular” governments require greater centralization of authority, and, most commonly, superior executive or magistrate authority as a result of that centralization (basically, a form of control over the administrative or bureaucratic state).

    Thus the effect of direct election of Senators moved the form of their representation toward the promotion of “popular” government with a concommitent need for centralization of authority due to the further dispersal of the representation of interests.

    “Popular” governments appear to be an organic response to the numerical superiority of those members of social orders who prefer to avoid the risks and responsibilities of choices and activities required by the exercise of individuality. Those particular members have been identified by scholars and commentators as “anti-individual” and “mass man.” The essential problem so far observed is that the choices of “mass man” cannot be truly “represented,” because he avoids or evades choices, with their anticipated consequences. What he can provide to “leaders” (the political class) is power. When conflicts over the possession or use of that power reach a certain level, a transfer of ultimate power to the executive or magistrate occurs. We are probably entering an era of that form of government.

    As to those who question the value of corporate entities and their “equation” to individuals, there should be some reflection on the value of the perpetuation of enterprises so that they are not dependent upon those connections and relationships which are determined by the natural and limited lives of individuals. In those societies which have no such forms of enterprises, the deficiencies are clearly observable. Continuity of enterprises and cooperation through corporate forms has been a major advance in human society.

  6. gabe says

    Richard:

    I do not think that people are questioning the value of corporate entities as creators of wealth and surplus. Rather, it is their fuller role as “citizens” with specific 1st amendment rights to participate in the electoral process that is at issue.
    I am well aware of the need for classifying corporations as “citizens” – without such a legal construct, none of the 19th century Commerce Clause cases could have been adjudicated. However, to permit such entities to exercise rights that were intended for the individual citizen is corrosive of those rights. Are we not engendering “faction” by doing so? fostering corruption? rent-seeking? and the growth of administrative agencies charged with “policing” the preferred policies of the rent seekers? So much of what we think of as anti-business regulations have actually been proposed (in many instances, written) by corporate interests who can afford the added costs while there competitors cannot.

    Should we allow this to continue?

    take care
    gabe

  7. R Richard Schweitzer says

    Yes.

    Not to do so, or to attempt to “design” or “construct” other forms of relationships of humans to replace those now so conducted limits the freedom of individuals to choose the manner of their cooperations and to decide upon the force and effects that those choices shall have.

    It is nature of the motivations of the individuals, not the forms taken from those motivations that create the deficiencies referred to. Those deficiencies and conditions have occurred as stages of the natural results of human actions “feeling their way” to acceptable conditions for cooperation and living together in a society consisting of individuals and “anti-individuals.”

    Your reference to “rights that were **intended** for the individual citizen is corrosive of those rights” in this context, is puzzling. Whose intent? So far as I am aware, “rights” (which are basically the results of the recognition, acceptance, and performance of obligations to others) do not arise out of intense other than the motivations of humans in seeking objectives. The vehicles or mechanisms used in the expression of those motivations does not alter the nature of the obligations.

    That is not to say that individuals do not attempt to escape the performance of obligations.

  8. gabe says

    Richard:
    The motivation you allude to or the intent i allude to may be said to be the aim of Madison and others to so structure a republican form of government that is based upon consent of the individual and that to the extent possible is free from, or at least, able to counter, factionalism. Thus, to allow a “faction” (large corporate, union or special interest entities) to effectively dominate the electoral process is “corrosive” of the founders motivation.

    take care
    gabe

  9. R Richard Schweitzer says

    Your allusions may be so said, but mine certainly are not to be.

    First off, **all* interests are “special.” That is not semantics. If the functions of representative governments have become the representation of “interests” rather than principles, then ** all** interests (however aggregated or dispersed) should be entitled to representation if the system purports to be one determined by democratic process. Aggregations into “factions” of whatever structures (which in turn incorporate the interests of natural persons) do not impute dominance of the electoral process. They can impute disproportionate influence (often control) of legislative and administrative functions (as you noted). But then those functions have been expanded so far beyond “the founders’ motivation” that an entirely different set of issues is now involved. Factions have become a necessity.

  10. gabe says

    It is even worse than that – factions have become government – and not simply at the Federal level. Check out the collusion between state agencies and interest group factions.
    Rather sickening, isn’t it!

  11. R Richard Schweitzer says

    “Rather sickening, isn’t it!”

    If one looks only on the decrepitude, failing flesh and other disorders without thought to causes, remedies and preventions, that might be the reaction.

    But, there are other reactions. The effective ones eliminate the “sickening” aspects.

  12. gabe says

    One thing should be pointed out when we rightly criticize the “bribery” functions of the Fed Gov – the States have been willing “co-conspirators in this endeavor and in many instances have instigated it.
    The States are not, nor have they ever really been, the idyll of liberty that we may wish them to be.
    What we have now is a stacking of Leviathans upon our shoulders – some larger than the others – but impositions, one and all.

    take care
    gabe

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