Football and Filibusters

On January 1st, 2013, Stanford fans cheered and Wisconsin fans sat silently as the Cardinal won the 99th Annual Rose Bowl. As you may remember, Stanford pulled ahead early with two first quarter touchdowns and Wisconsin never caught up, despite pulling within three points. What if, however, the referees changed the rules halfway through the game so that the game clock would stop after normal run plays? Without the run-heavy Cardinal offense burning through time in the second half, would our defense have been able to hold Wisconsin scoreless? Stanford fans would be irate at the change; Badger fans may have had mixed emotions. Although the rule may have come to Wisconsin’s aid in this game, it would inevitably come back to haunt the equally run-reliant team next season. On July 16th, 2013, the United States Senate avoided a seemingly arbitrary rule change that, if enacted, would have reverberated across the country in very real ways. Senate leaders saved the filibuster. They saved one of the most powerful bulwarks against expansions of government power.

When the Framers designed the Senate, they implemented rules that would enable it to provide a forum for extended debate, to resist impassioned popular outcries for change, to maintain stability. Every two years, the entire House is up for reelection yet, during any election cycle, only a third of the Senate faces the voters. The Senate has the right to confirm Presidential nominees, to ratify treaties, to try those to whom the House has given Articles of Impeachment. Senate rules beyond the Constitution establish the filibuster: the right of a Senator to delay legislative action indefinitely that can only be stopped by sixty votes. A filibuster can be invoked at many places in the legislative process such as placing something on the Calendar, bringing it to the floor, and the actual vote. Using this rule, Senators have numerous opportunities to block legislation they don’t like. The filibuster’s power to limit government expansion was on display during the Obamacare debate. Although the law eventually passed, the threat of filibuster helped remove a public option-a far more dangerous program than the current law.

Over the summer, the Senate Majority Leader, Harry Reid, angry over frequent Republican filibustering of the President’s nominees, threatened to invoke the “nuclear” option and weaken the filibuster. Under this approach, the Senate’s Presiding Officer would rule that an issue requires a simple majority to advance and, although this ruling would be challenged, it would only take fifty-one Senators to resist the appeal. Democrats currently hold fifty-two seats. Opposition parties would not have the option to mount a filibuster. This may seem esoteric, but its impact would be analogous to a rule change in the Rose Bowl. The Minority’s power in the Senate would be seriously weakened and a fundamental limit on government power would shatter.

Late on Monday, July 15th, 2013 and early on Tuesday, July 16th, leading Senators from both parties bargained, hoping to prevent a rule change. Eventually, after harrowing negotiations, Republicans agreed to approve seven of President Obama’s nominees to save the filibuster. Why did Democrats agree to this? They could have invoked the nuclear option and severely limited the Republicans’ power. The answer to this question is the same reason that Wisconsin may have resented the hypothetical rule change: the Democrats may be in the minority someday without the ability to filibuster nominees. The filibuster is an extremely powerful limit against government expansion precisely because all parties have a vested interest in maintaining it, despite the fact that both parties have threatened the “nuclear option” at some point (the Republicans did in 2005 and the Democrats threatened to shut down the Senate, a statement on the rule’s importance). Politicians will continue to threaten the “nuclear option” as Harry Reid did during the recent shutdown yet it is unlikely the option will ever be used.

Although the filibuster may be used someday (and has been in the past) to limit efforts to cut spending and trim government, the filibuster is an important tool for advocates of limited government. Given recent historical trends, it seems unlikely that there will be a massive legislative push from either party to shrink government. Republicans incessantly clamor for increased defense spending while Democrats constantly invent new ways for the government to redistribute wealth. Therefore, any tool that can slow this trend is an essential weapon for advocates of liberty and, right now, the filibuster is one of the most powerful weapons we have.

A change in the filibuster would affect all of us. Big time. For liberty’s sake, let us hope that the filibuster remains. Given current political trends, it is vital.

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