When Vice-President Thomas Jefferson presided over the Senate during the presidency of John Adams, he found it necessary to codify the rules in a book called A MANUAL OF PARLIAMENTARY PRACTICE: for the Use of the Senate of the United States. Near the beginning of the book, he discussed the importance of rules and customs in parliamentary bodies. What he had to say can be used to indict the Republicans for their abuse of the filibuster, but it can also be used to indict the Democrats for changing the rules. So, take a look, and tell me who has the better argument.
IMPORTANCE OF RULES.
SEC. I
THE IMPORTANCE OF ADHERING TO RULES.
MR. ONSLOW, the ablest among the Speakers of the House of Commons, used to say, ‘it was a maxim he had often heard, when he was a young man, from old and experienced members, that nothing tended more to throw power into the hands of administration and those who acted with the majority of the House of Commons, than a neglect of, or departure from, the rules of proceeding: that these forms, as instituted by our ancestors, operated as a check and controul on the actions of the majority; and that they were in many instances, a shelter and protection to the minority, against the attempts of power.’ So far the maxim is certainly true, and is founded in good sense, that as it is always in the power of the majority, by their numbers, to stop any improper measures proposed on the part of their opponents, the only weapons by which the minority can defend themselves against similar attempts from those in power, are the forms and rules of proceeding which have been adopted as they were found necessary from time to time, and are become the law of the House; by a strict adherence to which, the weaker party can only be protected from those irregularities and abuses which these forms were intended to check, and which the wantonness of power is but too often apt to suggest to large and successful majorities. 2 Hats. 171, 172.
And whether these forms be in all cases the most rational or not, is really not of so great importance. It is much more material that there should be a rule to go by, than what that rule is; that there may be an uniformity of proceeding in business, not subject to the caprice of the Speaker, or captiousness of the members. It is very material that order, decency and regularity, be preserved in a dignified public body. 2 Hats. 149.
And in 1698 the Lords say, “the reasonableness of what is desired is never considered by us, for we are bound to consider nothing but what is usual. Matters of form are essential to government, and ’tis of consequence to be in the right. All the reason for forms is custom, and the law of forms is practice; and reason is quite out of doors. Some particular customs may not be grounded on reason, and no good account can be given of them; and yet many nations are zealous for them; and Englishmen are as zealous as any others to pursue their old forms and methods.” 4 Hats. 258.
What say you?
Posted a diary over at Kos (with what I hope are appropriate props to you) about the topic:
http://www.dailykos.com/story/2013/11/22/1257604/-The-Founders-Hated-the-Fillibuster?showAll=yes
my answer: Filibustering when considering laws and structural fabric of the character of the governing rules of the nation (i.e. filibustering legislation or supreme court justices that determine constitutionality) should be preserved.
Filibustering of the enactment and administration of settled law should not.
I would go so far as to say the distinction should be enhanced and magnified, and should be set out formally…
Once a law gets through the gamut, is passed, signed and has passed muster in front of the supreme court (during which time it should be subject to filibuster, even by a minority of one)… then the execution, management, oversight, and administration of that law should NOT be subject to such simple filibuster.
I think this is the operative passage here:
It is very material that order, decency and regularity, be preserved in a dignified public body.
While the GOP reliance on the filibuster can certainly said to have become quite a regularity, it’s hard to argue that it does anything but demolish any notion of order and decency.
Oh. Bit of a snag though with the “dignified public body” portion, considering Congressional popularity is polling in the single digits, right behind meningitis and dog poop.
Jefferson was writing for a body of governors that were homogenous, the exclusive ruling class of men and in a day of honor among like people. Of course, disagreements could be “settled” with duels, but in a gentlemen-like arena. Ha Ha. Because a large portion of the inhabitants of the nation they governed were excluded from practical consideration, the idea of compromise and mutual respect for each other was easier to exhibit.
Since those days, a common notion of human equality has been released from the hypocrisy of exclusion, some uncommon men (and women) just cannot tolerate it. If Jefferson had been writing for a truly democratic nation, he would have been more circumspect and grounded his words & imagination in a real world of moral and immoral authoritarianism.
Without denying that politics and sociology have a great mutual influence, this is a political not a sociological question; so I disagree with the implications of your last sentence.
I think the rules were broken by the GOP. Once the rule is broken, it ceases to be a rule.
It would be nice for the minority to have rights to slow things down. I like the idea of a “decaying filibuster” that has successively smaller number of necessary votes for cloture over a period of months.
The problem with the filibuster is that it does not delays the passage of laws, it ends the necessary functions of government.
Most “upper houses” around the world can only delay legislation a little while. They can act – to use Jefferson’s phrase – as a saucer to cool the heated passions surrounding an issue.
What the US Senate does – through the filibuster and the disproportionate representation of small states – is not a legitimate application of minority rights.
Well, Jefferson was in an interesting position there. As Vice President he was presiding over the Senate, but at the same time he was the leader of the minority party. So it stands to reason that he was concerned with minority rights.
Which is not to say that’s being insincere here, but his concern with order and regularity is somewhat at odds with some of his other activities while serving as Vice President, such as authoring the Kentucky resolution.
But to take the argument on its merits, yes you do need some kind of check on the excesses of the majority. Ideally. But tyranny of the minority is even worse, and just about any rule can be abused. If you just look at it in terms of which party has been more captious and which has been more decent and regular, I don’t think there’s much question about that.
The “forms and rules of proceeding” were followed every step of the way on these nominations until the (second) Repub filibuster of Millet. There is a rule by which the rules can be changed. The Repub minority (in committee and on the floor) had every opportunity to question the nominee and attempt to demonstrate unfitness and persuade members. The process took months, and that’s what the “rules” provide to protect the minority. There were no “irregularities and abuses which these forms were intended to protect” present here. (Such as holding the vote open for hours in the corrupt House of DeLay to pass the Medicare Drug bill through coercion).
Repubs want a very broad reading of the minority right to “continue debate”, which of course is the last thing they are interested in. The last thing they want is a “uniformity of proceeding in business, not subject to the … captiousness of the members”. Indeed, they demand the proceedings be subject to their captiousness! They want to kill these nominations by refusing a vote on them. They haven’t any more arguments to make against any of these nominees at all, so I disagree with the traditional reading of the filibuster “right” in the rules. Repubs simply assert the rules allow them an unqualified unconditional right to say “no” for any reason, however threadbare and dishonest. They offered no compromise, and their objections were not made in good faith; Repubs did not believe Grassley’s asinine arguments themselves.
Ultimately, whatever Jefferson wrote about rules of parliamentary bodies, I doubt he would have had much sympathy for what is really going on here—the strategic and systemic refusal of an entrenched minority to allow the gub’mint to function. We’ll let everyone draw their own conclusion about which abuse–a change of rules or gridlock by filibuster–Jefferson would have considered the greater problem for a parliamentary body.
In general, the process needs to have super-majority approval. That way, the minority will mostly accept outcomes as legitimate. This is why constitutional amendments should have a higher threshold than regular legislation.
“as it is always in the power of the majority, by their numbers, to stop any improper measures proposed on the part of their opponents, the only weapons by which the minority can defend themselves against similar attempts from those in power, are the forms and rules of proceeding which have been adopted as they were found necessary from time to time, and are become the law of the House; by a strict adherence to which, the weaker party can only be protected from those irregularities and abuses which these forms were intended to check, and which the wantonness of power is but too often apt to suggest to large and successful majorities. 2 Hats. 171, 172.”
This is the heart of the matter. Now tell me, what were the “improper measures proposed on the part of their opponents”? — other than attempting to carry out the policies of the duly elected administration? The Republicans saw the forms and rules as a way to defend themselves not against abuses, but against the will of the people.
And on the question of appointments, they did this by going against against qualified and not notably partisan appointees, and contrary to the practice of Democrats in the past with regard to their appointees. And they did it not with deliberation or on the merits (even ostensibly) of the appointees, but as a categorical rule.
The Republicans employed the forms and rules not against improprieties, irregularities, or abuses, but to defend their own platform, which had been rejected. As such, clearly they were the ones abusing the system.
Under this abuse, which went on for five years straight, the Democrats, merely to carry out their constitutional duties, and pursue the policies for which the people voted, had no other choice but to change (not eliminate) the rule. They made this purely procedural change according to other, existing rules of procedure, and in a decent and orderly manner.
The GOP escalated this to a level at no times seen since before the Civil War:
“neglect of, or departure from, the rules of proceeding”
They found multiple ways of abusing existing rules and found unprecedented new ways of obstructing functional government.
Their minority voice has dictated a halt to any normal function of government via their abuse and they claim the Dems acting in the interests of the majority and in the health of the nation are anti-Democratic?
And THIS IS WHY WE CANNOT HAVE NICE RULES. The GOP broke Congress, the Dems will half to salvage what they can. The form of the rules define the institution. If rules are to be followed their rationality is important. (Secret hold anyone?)
As for “dignity”? There isn’t much dignity in war and that is what this has become. Can anyone listen or observe the GOP and claim the GOP isn’t “at war” for many years now?
It is just the complement of the Clausewitz maxim. Yes we can be open to détente, but let’s not kid ourselves anymore about the extreme times we’re in.
When the minority abuses the rights of their status, they are not entitled to protection from the majority.
the Constitution has to trump. While Article I also gives the House and the Senate the ability to set their own rules, those rules must conform with the other limits of the document.
There are three major, unwritten rules inherent in the Constitution — the right of citizens to vote (hence the number of Amendments expanding that right); the right of majorities to see their will expressed via legislation, hence respecting and representing the will of the citizens; and the proscription of a current Congress from tying the hands of a future Congress unless by Constitutional Amendment (and ratification).
That is, the first (or any current) Congress can not have instituted a rule whereby the Senate must have a 4/5ths (or 2/3ds or 3/5ths, etc.) majority to alter previously enacted legislation or to supersede the super-majorities that the Constitution names.
The text, history, and structure of the Constitution point strongly to the idea that the filibuster is inherently unconstitutional unless it is used only to delay (but not prevent) votes on legislation or action from occurring.
The Senate is already anti-democratic enough; the Democratic majorities represent far far more citizens than 40 (or even 48) Senators from the Republican (plus Manchin and Pryor) bloc.
We’ve lost far more by having the filibuster than if it were gone. If Bush et al had privatized Social Security in 2005, we’d have a permanent Democratic majority now.
Segeant Josef Schweik has an excellent grasp of the function of rules.
And the Republican obstruction strategy has resembled that of the legendary Sergeant.
Because what Republicans wanted and still want is for the Obama administration to accomplish absolutely nothing. And to be able to cite that non-accomplishment as a reason to elect more Republicans.
Formalities exist in situations of extreme conflict, and a deliberative body philosophically divided or divided by interests certainly fits that definition.
Contrary to Onslow, the content of the rules are as significant as the fact of the rules in maintaining the dignity and function of the deliberative body. Departure from the rules advantages a majority, not necessary the majority (in the sense of ruling party/opposition party).
The filibuster as it has been used for the past five years advantaged the GOP and a coterie of Democrats who wanted to hide their sabotage of the President’s agenda or any progressive legislation. Or who wanted to use obstruction as bargaining for special interests elsewhere–either in legislation or in executive action.
Rules are important, as is the point Jefferson made about them elsewhere:
Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
Would you please cite this excerpt? Is it from the same document? Certainly it is crucially linked.
It’s from the Declaration of Independence, which was also written by Jefferson, over twenty years earlier.
Of course…
a conveniently overlooked clause by patient people within the system, secure in their non-poverty