Last week’s blog discussed why the Senate isn’t “filibusted” as critics of that procedure allege and why the Senate, unlike the House, isn’t dominated by the majority party. This week’s blog argues the rationale for continuing the filibuster rule in Senate procedures.

Obama has been pushing Majority Leader Reid and the Democrats to get rid of the filibuster so he can get his left-leaning agenda through Congress. At least that’s his position since he’s become President. When Bush was President and Obama was a Senator-in-training in the minority party, he was all for the filibuster as the Democrats’ only means for blocking the evil Bush agenda.

Reid’s recent threat to “go nuclear” and change Senate rules by a simple majority flies in the face of Senate Rule V. That rule clearly states “The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.” What are “these rules”? They include Senate Rule XXII which requires two-thirds of the Senators to change rules and three-fifths for all other business. The entire Democrat caucus does not contain 66 Senators. Therefore Reid’s threat to go “nuclear” had no chance of passing. Even a Senate rules amateur like me knew that. Nevertheless, Minority Leader McConnell, another Republican dinosaur who along with Boehner needs to be ousted, caved and allowed three of Obama’s seven nominees for the NLRB to be confirmed if Obama would symbolically replace two of the nominees. What a deal!

Democrats have repeatedly warned Republicans in the past not to try to change the rules because the Republicans wouldn’t always be in the majority. Did anyone hear Republicans make the same warning to Democrats last week? I didn’t. McCain and his fellow RINOs couldn’t get to the negotiating table fast enough so they could make concessions to Reid’s empty threats.

The pressure to “reform” the Senate filibuster rules – a euphemism for eliminating the filibuster – represents a serious misunderstanding of the concept of divided government as embodied in the Constitution. Understandably the Democrats want to make it easier for a Democrat President to get his way with Congress. What will happen when there is a Republican President? A Republican Congress? Like Scarlett O'Hara, I guess the Democrats will think about that tomorrow.

Absent the Damoclean sword of the filibuster, what happens to the system of checks and balances that the Founders envisioned in governance when the legislative branch is too cozy with the executive branch? The Founders intended for Congress to protect its constitutional power against the encroachment of the executive branch instead of deferring more power to the White House.

James Madison appealed to this understanding in Federalist 51:

“But the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others … Ambition must be made to counteract ambition.”

Since the Roosevelt Administration of the 1930s, however, Congress has increasingly become a wholly-owned subsidiary of the Executive when the same party occupies the White House and one or both chambers of Congress. Congress moreover has ceded growing power to the administrative rule makers in government agencies making the Executive more powerful even when his party is the congressional minority. How? Because arguably more enforceable law governs the lives of American citizens today which originates in government agencies than originates in Congress. Just think of the regulations promulgated concerning air and water quality, the use of public and private land, energy exploration, travel, education, welfare, you name it. Who governs these agencies and their regulatory machinery? The President.

Weakening the filibuster’s brake on presidential power by Congress would exacerbate the declining influence of Congress in governing. How? By diminishing the minority party’s participation in legislating, in approving agency appointments, and in confirming judiciary replacements. Congress would become two chambers with “rocket dockets” with no real deliberation and deal-making. ObamaCare and Dodd-Frank legislative monstrosities would become the norm regardless of the party in power.

Congress should pass legislation that appeals to a broad segment of the majority party and some of the minority party. If extremist legislation appeals only to a narrow segment of the majority party, the filibuster should prevail to defeat it. When legislation appeals to the majority party and some of the minority party, it will prevail even if filibustered.

The sense of the US Constitution is violated when the minority party is denied opportunity to influence the political process. The party in the majority has no monopoly on good government ideas. Reasonable legislators should therefore welcome opposing minority ideas to broaden the appeal of laws to the citizenry, assuming citizens pay attention to what’s happening in Congress.

Neither the White House nor the House of Representatives has any incentive to protect the rights of the minority party which Senate rules currently do. The filibuster prevents the President from dominating the Senate, and thereby, the Congress. The filibuster forces common ground to be sought and compromises made. The filibuster prevents radical policy shifts from administration to administration and thus makes for more stable government.

Here’s how.

Even in today’s politically polarized environment, which includes one party’s use of the filibuster to obstruct the other, more moderate legislation will result. The more divergent each party’s ideological positions are the more they are pushed to the center by the filibuster to get anything done. ObamaCare and Dodd-Frank will haunt Americans forever and cost trillions of taxpayer dollars. Neither law could have passed in their present form, if at all, had the filibuster been operative. A scaled down version of ObamaCare and Dodd-Frank might have passed if amended to represent opposing ideologies, and if that had happened both would have been indisputably better law than what we now have.

A second reason for keeping the filibuster is that it makes for better government. Given each party’s ideological tilt, it’s safe to assume that when the Democrats are in charge, their base is going to pull policies to the left. When Republicans are in charge, their base will pull policies to the right. The majoritarian House will easily follow the dictates of the party in power since only 218 of 435 votes are needed to pass a bill. The Senate is a different story if the filibuster isn’t neutralized. Each vote gets more expensive in terms of trading power. Even in the filibuster-proof 111th Congress Democrat Mary Landrieu’s vote cost Democrat Leader Reid the “Louisiana Purchase,” Democrat Max Baucus, the author of ObamaCare, got massive Medicaid concessions, and Democrat Ben Nelson sold his soul for the “Cornhusker Kickback.” It would have been much easier to have passed ObamaCare if only 51 deals had to be made – which a simple majority would require – instead of 60 – which a filibuster requires. The filibuster was toothless because there were 60 Democrat Senators, so no accommodation with Republicans had to be made. However, the law didn’t sail through the Senate because Democrats are politicians first and Democrats second. Their constituents were watching them.

A third rationale justifies keeping the filibuster. If Senate ideology was rank-ordered so that the 20th Senator is less liberal than the 19th and the 50th is less liberal than the 49th, the 60th Senator needed for cloture is less liberal than the 59th and every Senator which preceded him. If Senate bills can pass with 51 votes rather than the 60 needed for cloture, more liberal legislation will pass. If the Republicans are in power, more conservative legislation will pass without a filibuster. When the majority party doesn’t have an overwhelming majority, the process of finding the 60th vote moderates legislation through amendments and compromise. Less may get done during a congressional session, but what gets done is better law.

Here’s a fourth reason for keeping the moderating influence of the filibuster. It works retrospectively as well as prospectively. Suppose Republicans held the White House and both chambers of Congress today. Their base would push for repeal of the hated ObamaCare and perhaps Dodd-Frank. Could they do it? The filibuster would make it much harder. Maybe impossible. There is a chance that parts of ObamaCare that are disliked by both parties could be repealed. There’s a chance that Democrat Senators who are up for reelection and have constituents who dislike the law might see political advantage in partial repeal. But there is almost no chance for total repeal which would require 60 Senate votes. Years if not decades must pass before the enthusiastic supporters of ObamaCare are totally out of the Senate, if ever. So repeal of ObamaCare isn’t likely.

But how about if only 51 votes were needed to repeal ObamaCare? Far-reaching change could follow every administration change. A new administration could undo previous administrations. Subsequent administrations could undo the current administration’s legislative achievements. Political instability would occur making it impossible to plan for the future.

It’s unlikely that the political factionalism will moderate in the future. There is almost no political center in either party. And political factions have long memories. Revenge will be on ideological minds for years to come. History will likely remember Obama as the most divisive President since the Republic began. George Bush may have been divisive but he didn’t work at it. Obama did.

The filibuster could be the best hope for dealing with the political polarization of future administrations. It operates on both the majority and minority parties, albeit in different ways. And it moderates the extremism of each party. A simple majority rule would embolden the extremists in the majority party and antagonize the minority. Whatever comity exists today would evaporate.

There is one change to the filibuster I would like to see. The threat of a filibuster works today as well as an actual filibuster. That is why, with the exception of Senator Rand Paul’s recent filibuster, we haven’t seen the real thing in a long time. That should not be. Real filibusters should expand the debate on controversial bills moving through the Senate. I would be in favor of forcing every Senator who threatens a filibuster to get off of his butt and filibuster. He should stand up on the Senate floor and make his case. Appeal to colleagues who haven’t read the law they are about to vote on. Argue a reasoned position so the public understands the issue if it is inclined to listen.

Threats to filibuster don’t extend debate; they prevent debate by side-tracking legislation and taking no action on it. No one is forced to talk. This cheapens the filibuster by making it cost nothing to the Senator threatening it. Of the hundreds or so “filibusters” that have taken place in the past few decades, only a few involved true debate.

This reminds me of the corruption that occurred among the plains Indians during the 19th century. A warrior who came into physical contact with an enemy – an Indian in an opposing tribe or a white man – was acknowledged for putting his life at risk. For his bravery he was allowed to notch his coup stick – as a gun fighter might notch his gun. In time, the practice became corrupted so that an Indian warrior could get credit for physically contacting an enemy by using the coup stick itself, which was often several feet long. A notch was a notch whether it represented a physical struggle with the enemy or touching him from the relative safe distance of several feet with a coup stick. It didn’t take long before the young bucks in a tribe figured out that they could ride through an enemy camp harmlessly touching opponents left and right with their coup stick. This gained lots of notches, making them look quite brave among their fellows. The practice was called “counting coup.”

“Counting coup” is what happens when a Senator threatens to filibuster but is not forced to perform the actual act. The practice should be terminated immediately.

The nation’s business needs to get done, although I prefer to see that in the quality of laws rather than in their volume or scope. We rarely repeal law – even bad law. No Child Left Behind comes to mind. Instead we patch bad law. The filibuster assures fewer reforms and patches will be enacted. But those that make it will be more broadly appealing in a diverse Republic like ours.

Harry Reid’s warning that the “nuclear option” is still on the table would be a fatal mistake if used, for the same reason he and other Democrats warned Bill Frist not to use it in 2005. Reid has said he seeks only to prevent Obama’s agency nominations from being filibustered and that legislation and judicial nominations would remain subject to 60 vote cloture. But Obama has nominated bad – arguably unfit – candidates before who should be rejected. Janet Napolitano is an example, and her performance as Homeland Security Secretary is Exhibit A of her unfitness for the job.

If Reid somehow finds a way to circumvent the meaning of Senate Rule V and makes non-judicial nominees filibuster-proof, what would prevent Republicans from “going nuclear” in their own way – filibustering all of Obama’s legislation and every judicial nominee?

In 2005 Democrat Senator Ted Kennedy saw the slippery slope that the threat of the nuclear option represented:

“By the time all pretense of comity, all sense of mutual respect and fairness, all of the normal courtesies that allow the Senate to proceed expeditiously on any business at all will have been destroyed by the preemptive Republican nuclear strike on the Senate floor… They will have broken the Senate compact of comity, and will have launched a preemptive nuclear war.”

Good advice. I hope Reid takes it.