In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences.
– Federalist Papers, Publius (Alexander Hamilton, James Madison, John Jay)
This is the fun time in American politics. The gloves are off. And when the gloves come off, the real fighting begins. None of this namby-pamby jab and parry. This is gut-punch and chin-shot time. True politics as blood sport. How it was drawn up. If the Republicans are going to use the rules available to ram a Supreme Court justice to a vote with weeks left until a national election after taking ten months to avoid a vote before a previous presidential election, because simply, they had the power, then it stands to reason that the Democrats are contemplating blowing up the current automaton filibuster rule to get things done on their end. They have the power.
Who has the most votes?
Democracy in action. Like the forefathers wished it and put down in writing. It’s all in the Federalist Papers. Shut off the TV, turn off talk radio, silence the blogs, vlogs and podcasts, chuck the slogans, give up your marching signs, and read the fucking thing. It’s chock full of America in there. Real America, not this nonsense we’re dealing with today. It is the foundation for whatever we supposedly celebrate in all our “exceptionalism”. And man, does it hate letting the minority make calls.
And that is where the rubber hits this particular road.
Firstly, let’s make it plain; the filibuster as presently constituted is against the fair rule of democracy. I use fair not in the sense that “life is fair”, because it most certainly is not. If it were, we wouldn’t need a Federalist Papers or the Constitution, or 600,000 wouldn’t have had to die to free humans from slavery. It is a failsafe, as Messrs. Hamilton, Madison and Jay surmised, to muck up the system if abused. And it has been abused more in the last decade than at any time since the antiquated rule emerged during an 1806 parliamentary procedure. For most of the next 150 years it was barely broached, save the Southern Democrats and most Republicans who used it to try and stop the Civil Rights Act, because, you know, Black people and rights has always been our disconnect. Lawmakers saw a problem and battled it out. The idea of simply blocking something on “principle” was not the issue. If you wanted to stop something, like say, the 13th Amendment to the Constitution, then you had to make your points, stand your ground, vote your conscience and the will of your constituency, and live with the consequences. See Doris Kearns Goodwin’s’ magnificent Team of Rivals or check out Steven Spielberg’s brilliant film based on it, Lincoln for a slice of the true American nightmare of legislation.
The problem is, and here is where our 2021 edition of Let’s Talk Filibuster comes in, the Republican Party is in deep shit. It is losing its majority nationwide. Most of its electoral strength comes from gerrymandering counties in states and dominating deep red states in the Great Northwest or the South. They need to curtail voting ubiquity. Since taking a shellacking in November, some states like Georgia are passing or poised to pass restrictive voting laws ostensibly to keep minorities from having access to drop boxes or voting on Sundays when they go a-churchin’, along with other fancy elements of suppression like making it illegal to hand out water on voting lines. That’s right. Illegal to hand out water. The design is to kill voting, hence helping the minority party keep the numbers down in order to win. Classic political maneuvering. The Democrats, who are in the federal driver’s seat want to, of course, keep the demographic progression of the voting block flowing in their direction. A new bill just ripped through the Dem-controlled House that will override these new measures.
And now it is the Senate’s turn. And even though the Democrats have a majority in both houses of Congress and the presidency, here comes the filibuster, an automatic stoppage to vote by proxy, not physical oratory, discussion, debate or rhetoric. In other words, democracy under siege. Of course, it is highly debatable – if there were anything close to such an animal in the Senate – whether this new bill is constitutional. But that won’t be discovered legally or otherwise unless this automatic filibuster is eliminated, and we get to vote on it.
Eliminating this anti-democratic caveat in the system is seen as a nuclear option – not sure why, if you read the Federalist Papers or care a lick about the origins of American democracy. But let’s say you don’t, and you just want to stop the other party from getting the mandate they acquired by the vote in November; then you hide behind the current filibuster.
Now, there is another side to this. So juicy. It means the perception will be – not unlike the one-sided ram-though Affordable Care Act vote of 2009 – that this is a power grab by Democrats to tip the playing field, much that crazy shit Republicans pulled earlier this year that led to the insurrection on the Capitol. Apparently, those who perpetuated it now call it satire, that they were only kidding, the election was not stolen. But it is merely a wonderfully entertaining but shameful survival tactic to avoid lawsuits and prison. But be that as it may nixing the filibuster, which doesn’t even have enough Dem votes, means there will be a political price to pay for Democrats, and certainly, as noted above, there is a very good chance this new Voting Rights Law, if it should make a majority vote, will be vehemently challenged in every possible court.
But hell, the ACA and the Patriot Act are still going strong, so fuck it.
And so, what to do about the filibuster as it is currently administered in the grand scheme of lawmaking?