Rebecca L. Brown appeared in The Tennessean on May 18.
A democracy can survive with or without a filibuster. It cannot,
however, long survive without respect for the rule of law at the top
levels of government. Yet we hear much about whether the filibuster is
good practice, and almost nothing about the subversive nature of the
proposal to end it. Citizens of all parties should be banding together
to resist the way in which the Senate leadership plans to bring about
the change they want, at the expense of the rule of law.
The Senate Rules permit two responses to a filibuster. The first is
to end a particular filibuster, and it requires 60 votes. The
second is to change the rule permitting filibusters, and it requires 67
votes. Opponents, therefore, have two lawful options for
change: one requires 60 votes, the other 67.
The Senate leadership is not satisfied with those choices. They do
not want either to follow the rules or to change them lawfully because
that will not yield the result they want. They want to have it
the easy way, with just 50 votes.
To make this happen, the Presiding Officer of the Senate, (probably
the Vice President of the United States), will have to make a ruling
that he knows to be false. He will declare, without basis, that the
filibuster is unlawful. Effectively, only 50 senators are needed, with
the Vice President‘s own vote as tie-breaker, to let his ruling stand.
By merely saying it is so, he will make it so.
But there is no text, anywhere, to support this ruling. Nor is there
precedent. Indeed, unbroken tradition over 200 years refutes it.
Even the Parliamentarian of the Senate, appointed by Trent Lott, cannot
support it. It would not pass the laugh test in a court of law, where
arguments and reasons must be supplied. But where power, not reason, is
the currency, the Senate leadership plans to make it so–not by
following the rules, not by changing the rules, but by strong-arming
the rules.
And so the nuclear option deserves its name. It does explosive
violence to the very foundations of our legal order. The Constitution
itself requires the institutions of government to reach out at every
turn and secure agreementóto discuss, to listen, to compromise and to
find common ground. Presidents must consent to legislation.
Legislators must consent to treaties and to nominations. House and
Senate must find agreement on policy. The founders of our nation had
experience with rulers who got results the easy wayóand fought a
Revolution to escape such unchecked exercises of power. They
deliberately rejected this model for the sake of more moderate and
enlightened rule. The traditional respect that Americans have accorded
to law over power has helped us become the longest-lasting democracy in
the history of humankind.
The nuclear option is profoundly disrespectful of this
constitutional tradition: it seeks to use raw power to hide
an unwillingness to compromise or moderate. After all, with 55 votes,
the Senate majority would have to reach out just far enough to persuade
only 5 minority senators to end any filibuster. That small concession
would be an act of respect, rather than contempt, for the tradition of
playing by the rules.
The rule of law is all we have to ensure that ours is a government
“for the people”ó not for a powerful few who will do anything to get
their way. If the nuclear option is offered in the name of confirming
judges who will “follow” the law, it is a grave irony indeed.
Those who cherish the rule of lawóthat is to say, ideally all
Americans–should be clamoring to urge their senators not to sacrifice
it for short-term political gain.
Rebecca L. Brown is Allen Professor of Law at Vanderbilt University Law School.