March 13, 2003

Power to the people?  

Nathan Newman has a couple of posts on the legitmacy of the filibuster as an institution. He agrees with the Republicans who've been calling it "undemocratic", but he doesn't think it needs to be thrown out. He goes on to say we should impose a 60-vote supermajority rule for judicial appointments.

First of all, it's hard to see how a filibuster is undemocratic. I guess if you take democracy to mean "majority rules" then there's an argument to be made; but democracy American-style stresses individual rights almost as much as the power of the majority. This means, for instance, that we have a Bill of Rights that protecting minorities from being overrun by majority interest.

But filibusters aren't even discussed in the constitution - they're actually part of the instutional rules governing the functioning of the Senate. They're designed to protect strong majorities from being manhandled if they're a vote or two shy - which means they protect the status quo.

But even though 60 votes are needed to break a filibuster, allowing filibusters isn't the same thing as requiring a 60-vote majority in the first place. The thing is, filibusters have a high cost politically, so the strong minority has an incentive to use them only rarely. That's why, from an institutional design perspective, they're so ingenious. Requiring 60 votes on every issue - whether we're talking judicial appointments or legislation - would make it next to impossible to get anything done. But having a disincentivized 60-vote option availiable protects the strong minority when it really matters.

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