04/25/2010 05:12 am ET | Updated May 25, 2011

The Era of Minority Rule

The recent Massachusetts election and controversy over the health care bill -- where one person, self-characterized as "41," can help defeat it -- highlight the "filibuster" practice of the Senate and raises the question of whether it serves any legitimate constructive democratic purpose.

The right to debate an issue is perhaps one of the most fundamental concepts of democracy -- as important as that of the right to vote. Perhaps they are manifestations of one and the same if one thinks of "voting" as an expression of opinion. Debate is the only guarantee that we have that the proper and satisfactory legislative action will be taken for the good of the country as a whole. Change does not come about easily, and it is important that every aspect of an issue be discussed as clearly and fully in terms of its social, political, and economic impact.

But debate by its very nature implies certain rules, and the rules in turn imply certain time limitations within which it is circumscribed. If there is to be meaningful debate it must be consummated by a voting procedure after all the pros and cons have been heard. Debate and voting go hand-in-hand. Debate that does not lead to action proves meaningless and counterproductive, abortive of the objectives for which it was intended.

The filibuster as it is presently practiced in the Senate, where a minority of 41 can effectively continue it ad infinitum (it takes a 3/5 supermajority to block it), also negates a principal element of democratic ideals, majority rule, and effectively replaces it if one thinks things logically through by minority rule. As the noted parliamentary authority, Sturgis, The Standard Code of Parliamentary Procedure, points out: "Whenever a vote of more than a majority is required to take action, control is taken from the majority and given to the minority.... This is minority, not majority, rule."

The practice has no legitimate basis. One of the rationales adduced in its defense is the protection of minority rights, another the prevention of precipitate legislative action. But it should be remembered that the very existence of a Senate where each state no matter what its size can participate in the legislative process with equal input, as opposed to parliamentary bodies in many parts of the world, and can inhibit action taken by the House of Representatives which numerically corresponds far more closely to the actual population of the country, already represents such a protection of minority rights as well as a brake to rash legislation. The use of filibustering as a defense is a superfluous and unnecessary one.

If it is honestly felt that a 3/5's vote is necessary to prevent hasty action and guarantee minority rights -- and it is dubious that good faith is the name of the game -- then it should be encoded in a general rule applicable to every Senate action. The integrity of the debating process would thereby be maintained, and its degradation to a manipulative tool for achieving ends it was not designed for prevented. This would also prevent a smaller than 41 minority of pursuing its obstructionist goals of delaying the passage of a bill for an unreasonably protracted time if not actually defeating it.

The filibuster also has an odious history. It was used up until the 1960's as an attempt, a usually successful attempt, by Southern senators who either had a racist agenda or whose political fortunes rested on a racially biased constituency, and prevented much of the legislation that could have enfranchised African Americans in obtaining the right to participate fully in the cultural, economic and political life of our country, doing so ironically and hypocritically in terms of minority rights. Much of the strife that characterized the 1960's could have been minimized, if not actually prevented, if appropriate action had been taken in time instead of substituting the streets for our legislative councils as the arena for social and political change.

Today the cost of delaying and even preventing action because of a polarized Senate where filibuster is the norm is equally high in terms of the critical problems facing us.

There are a number of ways of counteracting the filibuster, some of which have been tried, but seem unlikely because of the changed political climate.

Reconciliation, whereby a simple majority can be used to reconcile House vs. Senate bills where budgetary matters are concerned, is one example, although either side can cry "Foul" when this does not suit its purposes.

Allowing no other issue on the agenda, thus holding up all business until the current one is acted on is another, a risky and dangerous "playing chicken" step.

Exhausting the minority opposition by having the majority park itself outside the Senate chamber ready to rejoin when this objective is accomplished is yet another alternative, again an unlikely scenario.

But the most efficacious and just remedy would be to simply do away with filibuster and the cloture rule mandating 3/5's super majority, something that is of course never likely to happen given the improbability of any party ever achieving a 2/3's predominance (67 senators) required to pass this, or even then of relinquishing a tool given the reversals of political fortune that might one day serve its purposes, prioritizing its needs over the country's.

The amazing thing is that for the time being and the foreseeable future the democratic processes upon which genuine legislative actions depend are subverted, and that a politically flawed practice is touted openly, brazenly, and cynically (witness the gleeful "41" self-characterization) as an acceptable savvy tactic of political gamesmanship rather than the fundamentally counter democratic practice it is.

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