The US Senate Filibuster: It does not Produce Compromise, It Does not Protect Minority Rights

 

The debate over repealing the US Senate filibuster is reaching a partisan fever pitch.  Democrats are

worried that after passing the $1.9 trillion stimulus legislation on a straight party-line vote by using the reconciliation bill exception they will not be able to move their agenda unless the filibuster is repealed.  Republicans including Mitch McConnell vows “scorched Earth” if repealed, along with a   warning that of Democrats do this they will regret it in the future.

            Central to the argument for preserving the filibuster are two assertions.  One is that it is needed to protect minority rights.  Two, the filibuster encourages compromise.  The reality is, neither of these claims are true and in fact its repeal may promote both goals better than retaining it.

            The filibuster rule is a product of slavery politics, as was true of the electoral college.  If the electoral college’s goal was to protect the slave states from being outvoted in presidential selection by the free states, purpose of the filibuster was to do the same.  The Senate with its equal representation already gave the South a bonus in representation.  But what the filibuster did was to allow one senator the effective ability to shut down the action of the chamber to prevent it from passing legislation hostile to the South.  John C. Calhoun, a Senator from South Carolina in the antebellum South, used the tool effectively to block critical legislation.  But he is also famous for his role in the nullification crisis where he asserted states had a right to veto or nullify federal legislation.  His book A Disquisition on Government, advocated a theory of concurrent majority which would only permit legislation to pass if all classes, interests, groups, or states which had an interest in it supported it.  Effectively, the filibuster went hand-in-hand with his theory of government to support states’ rights and protect a slave holding minority against majority rule.

            Throughout history the filibuster has more often than not been used to oppose legitimate rights than support it.  It was used to oppose civil rights legislation in the 1950s and 1960s.  While American liberal democracy is supposed to protect minority rights, it is also premised on majority rule and respect for letting the legislative process facilitate social and political change and not inhibit it.

            Arguably the filibuster might have made sense a half century ago when American politics, parties, and studies show Congress were less ideological and partisan than it is now.  Back then the non-ideological or coalitional nature of parties meant far less straight party line votes in Congress.  But all that has changed, and Congress is far more polarized now than before.  We know that the filibuster’s use has increased over time.  Evidence over a 50-year period reveals a hardening of partisanship in Congress The attached graph from US Senate data details the increase use of cloture (the tool to close filibusters) over time.  It demonstrates a clear pattern of increased use of the filibuster over time.

 

The filibuster has facilitated that.  One the filibuster encourages is not negotiation and compromise, but winner-take-all politics.  Its presence allows one senator or a minority to veto legislation instead of encouraging cooperation.  If the filibuster were repealed, dissenting senators would have more of an incentive to participate in forming the bill as opposed to being holdout and shutting down any action.

Moreover, if the filibuster were a tool encouraging compromise, 50 years of data would not produce data demonstrating the increased use of cloture over time.  A long-term trend of polarization should produce either no increase in its use, or alternatively its threatened use should reveal evidence of adopted bipartisan legislation over time.  In fact, the longer trend over the last 50 years reveals a steady decrease in the number of bills passed. 

From a statistical point of view, there is a connection between the numbers of bills passed and votes on cloture.   Correlating the two statistically, there is a strong negative -.66 relationship.  This means as the use of the filibuster has increased, the number of bills passed has decreased.  This is not  proof that the use of the filibuster has caused  a decrease in the number of bills passed, but it is powerful evidence in that direction.

 

 

 

 

Thus, the filibuster does not produce compromise and it does not encourage legislating.  Instead, what it has done is weaken Congress, making it a far less effective body than it once was.  This has produced two phenomena.  One, it has empowered by the President and the Supreme Court.  It has done that by forcing the president to govern by executive order and bypass Congress when it can.  It has also put the Supreme Court and the federal judiciary into a role of resolving disputes that it should best be addressed by the political process.  It thus also makes judicial confirmations far more important than they should be.

The second problem is that the filibuster precludes the type of negotiations that are needed to update and correct legislation.  There are a litany of laws, ranging from health care, elections, tax policy, labor relations, communications, and infrastructure that need fixes or updates.  The filibuster permits a minority or perhaps even a special interest to thwart needed policy change, thereby freezing innovation and necessary legislation for the public good.

            The filibuster never was good for American democracy and it is even worse now.  The supposed reasons for its continuance are merely myths that fail to sustain its existence, and which instead perpetuate or exacerbate political dysfunctionalism.

Constitutional Personhood: a tale of women, fetuses, corporations, animals, robots, and Martians

Note:  This was my Constitution Day talk at Hamline.
“We the people” are the first three words of the Constitution. Legally it should be simple to decide who is part of that we.  But as the Hobby Lobby decision showed when the Supreme Court ruled that a corporation had religious rights, it is not always clear who or what the Constitution considers a person or a thing.  One would think that it is simple–persons have rights, property does not.  The reality is that throughout American history the constitutional line between property and personhood has been thin and contentious.
     The text of the Constitution uses “person” 22 times.   Many instances refer to eligibility to run for office such as president.  But two places, Article I sections 1 and 9, refer to “other persons” when discussing slaves for the purposes of determining congressional representation, apportioning taxes and regulating slave trade.  They and  Indians were to be counted as “three-fifths” of white male persons when it came to representation.
    While the constitutional framers thought slaves were other persons, they certainly were not entitled to rights of citizenship.  In the 1856 Supreme Court decision Dred Scott v Sandford, Scott, a slave, was taken north to free territory at Fort Snelling and claimed his freedom.  Chief Justice Taney declared that while slaves were people the Framers did not intend them to be considered persons with rights.  Using the Fifth Amendment that stated that no owner shall deprived property without due process of law, slaves were declared possessions of their owners.
    Slaves and Native-Americans were not the only constitutional outcasts.  As early as 1776 Abigail Adams, wife to John Adams, wrote him urging the Continental Congress to “remember the ladies” when they met to declare independence.  Yet in the 1875 Minor v. Happersett decision the Supreme Court acknowledged women to be persons and citizens yet nonetheless could be denied the right to vote.  A decade later in County of Santa Clara v. Southern Pacific Railroad Company the Supreme Court simply accepted as given that corporations were persons under the Fifth Amendment. Property had rights.
    Over time the Supreme and other lower courts debated who qualifies as a person and what rights are attached to this status.  For corporations, personhood grants them the right to free speech,  and now free exercise of religion under Hobby Lobby.  They can also sue and be sued, own property, and be held criminally for their acts, but cannot claim a right against self-incrimination.
    Children are persons and at one time in cases such as Tinker v. Des Moines the Supreme Court declared that the Constitution protects them.  Yet minors cannot vote and they face many legal restrictions on their behavior ranging from due process to smoking and drinking.  Resident aliens are persons, but enjoy fewer rights than citizens. Undocumented individuals should enjoy no rights according to some.  And since 9-11, it is not altogether clear what rights persons detained at Guantanamo Bay deserve.
    The battle over personhood and property continues to perplex American society and constitutional scholars.  Property is afforded significant constitutional protection and  challenges to land use, eminent domain, and regulatory laws often assert ownership rights. The 1973 Roe v. Wade decision legalizing abortion declared that “person” did not include the unborn.  Yet the Court did not say that the fetus was property, it was something in between requiring a balancing of its rights against the mother.  A fetus is not a person but many states criminalize women who smoke, drink, or do drugs while pregnant.   Six states have declared a fetus a person and North Dakota voters may do that this November.  But declaring a fetus to be a person still will not resolve what rights it has.
    Consider new frontiers in the battle for personhood.  Animals are legally property but laws ban cruelty and maltreatment.  Advocates urge that primates such as bonobos have a sufficient sense of intelligence, self-awareness, or pain that they are morally indistinguishable from humans and therefore should have their rights respected.  Presently, there is a case in New York where advocates are using a habeas corpus strategy to try to free a chimpanzee from confinement.
    Other frontiers sound more science fiction.  While the Supreme Court declared in its 2013 Molecular Pathology v. Myriad Genetics that human genes could not be patented, the case highlighted the increasingly fine line between human or person and artificial.  The 1970s television show The Six Million Dollar Man featured Lee Majors as a  human re-engineered with artificial parts and computers.  Is a future six million dollar man a person?  Consider Hal, the computer who talks to Dave in the movie 2001: A Space Odyssey. When Hal is turned off is that computercide?  When human replicants from Blade Runner kill in the future, will they be persons liable for crimes?  Is Data from Star Trek a person?  Finally, assume the proverbial aliens from Mars land on Earth, will the Constitution consider them persons entitled to rights? 
    Hobby Lobby thus demonstrates whether something is a person or property is only the beginning of  a constitutional debate about rights.  It also shows how controversial that determination is.  For those thinking that declaring animals or fetuses to be persons, or those urging the repeal of corporate personhood, declaration on status as person or property is only the start of the discussion about what rights are due.