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Nuke the Filibuster

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When Harry Reid and his Senate Democrats eliminated the filibuster for all presidential nominees except Supreme Court Justices, it was called the “nuclear option,” and with good reason.  Sen. Reid boldly circumvented a vote of the Senate and eliminated the filibuster rule based on a self-serving parliamentary ruling “interpreting” the Constitution to prohibit filibusters of presidential appointees.  (This ruling did not apply to appointments of Supreme Court justices only because no such appointments were pending at the time.)

The filibuster rule, which has been in place in one form or another for about 100 years, requires a supermajority of 60 votes in order to prevail on most matters that come before the Senate.  In eliminating the filibuster for most presidential appointments, Sen. Reid argued not that this was constitutionally required (as was the basis of his parliamentary maneuver) but rather that that the Republican minority had unreasonably and intolerably obstructed a large number of appointments by Democratic President Barack Obama.

In other words, this was not a principled “correction” of the Senate rules but rather an opportunistic power grab by the majority party in the Senate at the time.  Sen. Reid and his Democrats were warned at the time that this move was short-sighted because the time would come that his party would once again be in the minority and, as a result of this action, would be deprived of the power to prevent Republican appointees that they deemed unacceptable.  As Bob Dylan famously observed, “People call say ‘beware doll, you’re bound to fall.’  You thought they were all kidding you.”

Which brings us to the present, in which Republican President Donald Trump has made appointments that are abhorrent to the Democrats’ liberal sensibilities, and, as warned, the Democrats in the minority are bereft of the filibuster rule as a means to stop them.  Or as Dylan chided, “Now you don’t talk so loud.  Now you don’t seem so proud.”

As a result of the short-sighted opportunism of Sen. Reid and the Democrats, President Trump has a very good chance of being the first president in memory to have all of his appointments confirmed – including his nominee to fill the Supreme Court vacancy left by the death of Justice Antonin Scalia (assuming the Republican majority concludes that the Constitution no more allows filibusters of Supreme Court nominees than of any other presidential nominee).

All of this makes for fun political drama.  As a Republican, I enjoy watching the Democrats stew in their own juices as much as anyone else.  But what I enjoy even more is the long overdue erosion of the filibuster rule, which should now be eliminated altogether.

Although presidential nominees are no longer subject to filibuster, the minority still has the power (with limited exceptions) to filibuster legislation that it finds onerous.  This power should be terminated and the filibuster rule completely eliminated once and for all.

I know what you’re thinking.  I just got done chiding the Democrats for their shortsightedness in eliminating the filibuster rule for presidential appointments, now that they are the ones wishing they had such power.  If we Republicans eliminate the filibuster altogether, we might be able to more easily pass our agenda into law in the short term, but someday the Democrats will regain the majority and will have the same power.

The difference between Sen. Reid and myself is that what he did for political expedience I propose doing as a matter of principle and of good government.  Simply put, the filibuster runs contrary to our core governing philosophy of government of, by, and for the people.

The most important statement of the nature of our government ever written was in the second paragraph of the Declaration of Independence:  “To secure [our natural] rights, Governments are instituted among Men, deriving their just powers from the consent of the governed . . . .”  This foundational principle was made real through our Constitution, which established a representative democracy limiting the powers of the federal government to those to which “We the People” consent.  When we allow the minority to thwart the will of the majority, we do not have a government exercising “the consent of the governed.”

But, you say, an important principle in our representative democracy is that majority rule may not impede upon the rights of the minority.  I agree, and so did our Founding Fathers when they built into our Constitution safeguards of the natural rights of all people.  Under our Constitution, the majority in our country does not have the power to infringe upon those rights, and we have a court system designed to protect the rights of the minority from the tyranny of the majority.  Beyond insisting on protection of their natural rights, the minority does not have a right to thwart the will of the majority.  But that is precisely what the filibuster rule does.

Okay, you say, but as a practical matter, eliminating the filibuster rule would allow the Democrats to impose its big government agenda on us every time they regain the majority and have a sympathetic president.  This is absolutely true, and as a matter of principle they ought to have that right when the people elect them into the majority.  But that’s not the whole story.

What conservatives often forget is that the filibuster rule is the single greatest impediment to eliminating the leviathan of government programs already imposed on us by the Democrats. On a few rare occasions, the Democrats have won sufficient numbers in the Senate to overcome filibusters and impose onerous government programs on the country, and those programs have remained in place through today because it takes the same supermajority to terminate them.  Eliminating the filibuster rule would enable us to immediately start dismantling the onerous and failing programs that the Democrats created during those rare moments that they had the numbers to overcome a filibuster and would enable us to do so in the future in response to any new programs passed by the Democrats.  In other words, the people would always have at any given time the government that they consented to have through their ballots.

Our Constitution recognizes that the people have a right to whatever government we want at any given time.  Indeed, every election is a peaceful revolution in that the majority determines our destiny without having to resort to violence to change the status quo.  The filibuster rule is the antithesis of the principle of self-determination that has been our core governing principle since the beginning of our republic, and it is time for this anti-democratic rule to be eliminated.

Ken Falkenstein

Author: Ken Falkenstein

Ken Falkenstein is the Managing Editor of Committed Conservative and brings a wealth of experience and expertise in public affairs to the job. Ken served in the U.S. Army in the last years of the Cold War as a Russian linguist for military intelligence and the NSA. After leaving the Army, he earned his degree in Secondary Education from Old Dominion University, where he also wrote a popular column in the student newspaper.

Upon graduation, Ken worked as a Legislative Aide to two Republican members of the Virginia House of Delegates. Ken also served as Corresponding Secretary of the Young Republican Federation of Virginia, managed several successful political campaigns, and managed governmental affairs operations for a local Realtor association.

In 1995, Ken moved to Washington, DC to serve as a Legislative Assistant to Sen. John Warner (R-VA). While working for Sen. Warner, Ken attended law school at night, earning his J.D. with honors from the George Mason University School of Law (n/k/a The Antonin Scalia Law School). Since that time, Ken has practiced as a civil litigation attorney, including serving for three years as an Associate City Attorney for the City of Virginia Beach, Virginia.

Ken previously was a contributor to the highly-regarded political blog Bearing Drift and was a weekly co-host of The Steve Batton Radio Program. In 2016, Ken ran unsuccessfully for the Virginia Beach School Board. Ken is also a former President of the Down Syndrome Association of Hampton Roads.

Ken now lives outside of Denver, Colorado with his wife, Kim, and three sons, Adam, Dylan, and Joshua, who has Down syndrome. Ken’s writing is motivated and informed primarily by his concern for his kids’ future.