With Republicans once again blocking presidential appointments, it is understandable that Senate Democrats wanted to eliminate the filibuster for most presidential nominees. However, they have wrongly tampered with an important protection for minority rights with their filibuster "reform."
Of course, the majority ordinarily should prevail in a democracy. However, over a series of many decisions, majority rule can be unfair. As I learned when a member of a legislative minority that had no ability to filibuster, majorities can routinely and persistently shut minorities out of the political process. A 51 percent majority can translate into 100 percent of the power. U.S. Supreme Court Justice Byron White was correct when he wrote that the Constitution is violated when “a particular group has been . . . denied its chance to effectively influence the political process.”
In the past, the Senate’s filibuster rule prevented the majority party from running roughshod over the minority party in Washington. When Republicans have been ascendant, the filibuster protected the interests of Democratic voters; more recently, the filibuster protected the interests of Republican voters.
Undoubtedly, it has been very frustrating for Democrats to watch Republicans stymie President Obama and the Senate majority. Elections have consequences. But the loss of an election should not mean the loss of one’s political voice. It is important that all Americans have a say in the policies that emerge from their government.
Filibuster "reform" provides another example of Congress undermining the Constitution's basic framework. Senate Democrats have made it easier for presidents to have their way with Congress, and that has things backwards. The framers created a system of separated powers so that each branch would check and balance the other branches. As James Madison wrote in Federalist 51, ambition would counter ambition. Congress is supposed to battle the president for power, not try to promote executive authority.
Of course, senators and representatives already have done much to increase presidential power with their broad delegations of legislative power to the White House since the 1930s. But instead of finding other ways to amplify executive authority, Senate Democrats should be reasserting the prerogatives of their chamber.
[cross posted at orentlicher.tumblr.com]