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Obama Right and Wrong on the Filibuster

(Ernitz/Dreamstime) via Newsmax

I believe Barack Obama may well be remembered as one of our great presidents.

I am, however, deeply disappointed to see him join the ranks of President Donald Trump in opposition to the Senate filibuster. Appearing on "The Axe Files" podcast, Obama declared his belief that the Senate’s filibuster is "this extra-constitutional thing."

Obama is a professor of constitutional law. I am not.

However, one need only read the simple language of the U.S. Constitution. Article I Section V reads that "Each House may determine the Rules of its Proceedings . . . "

The former president seems to be frustrated not only by the Senate’s rules, but by its very makeup. He complained about the Great Compromise of 1789 made at the Constitutional Convention. Mr. Obama said, "The original design of the Constitution ensured sufficient checks and balances in part by having a bicameral legislature and by having the Senate originally not directly elected by popular vote. But, even now, Wyoming has two votes and so does California. So, you already have a range of counter-majoritarian structures buried in the Constitution."

I believe true democracy entails something more than simply majority rule. It must be balanced by the rights of minorities. Unlike the U.S. House of Representatives where majorities can legislate without consideration for the minority, in the Senate, the minority can almost always have some influence on legislative outcomes.

This is critical to the Senate’s role not only because it protects against overzealous majorities, but it promotes negotiation and encourages compromise.

Presidents are sometimes enraged by the supermajority requirement to end a filibuster in the Senate because it gets in the way of one-party rule. This is when it is most important!

A freshman senator named Barack Obama knew that.

He declared on the Senate floor, in 2005, "What (the American people) don't expect is for one party, be it Republican or Democrat, to change the rules in the middle of the game so they can make all the decisions while the other party is told to sit down and keep quiet."

Obama understood at that time that the solution to gridlock, the cure for the abusive obstruction is not to embrace the expedient of one-party control.

This would not reduce partisan polarization.

It would exacerbate it.

We can see this in the behavior of the majoritarian House.

He also declared, "If the right of free and open debate is taken away from the minority party and the millions of Americans who ask us to be their voice, I fear the partisan atmosphere in Washington will be poisoned to the point where no one will be able to agree on anything."

Thomas Jefferson, writing to James Madison in 1787, even suggested, "The instability of our laws is really a very serious inconvenience. I think that we ought to have obviated it by deciding that a whole year should always be allowed to elapse between the bringing in of a bill and the final passing of it. It should afterwards be discussed and put to the vote without the possibility of making any alteration in it; and if the circumstances of the case required a more speedy decision, the question should not be decided by a simple majority, but by a majority of at least two thirds of each house." (bolding/emphasis mine.)

I strongly agree with President Obama when of what I call "the weaponization of procedure," he says, "Filibusters, obstruction, process fouls, violation of norms, not calling a Supreme Court justice. . . . It’s just not the stuff that moved people to vote. And, the other side didn’t get punished for it. . . . We couldn’t focus enough attention on the fact that the basic norms of governance that took place for prior presidents suddenly didn’t hold for us." He points out that "it didn’t result in the opposition party . . . losing seats."

He observes, "Part of the challenge that we never completely solved, and I am the first to confess that I was not able to get this message effectively."

The solution as he implies is to generate political pressure on an obstructive minority.

This is what got the 1964 Civil Rights Act passed.

The danger lies in permitting the ends to justify the means. More than 200 years ago, in 1793, John Adams wrote, "Mankind will in time discover, that unbridled majorities are as tyrannical and cruel as unlimited despots."

It's a profound mistake to grab for power in the short-term ignoring the consequences.

Democrats did that in 2013.

They used a parliamentary ploy, the "nuclear option" to wipe away the filibuster on presidential nominations with the exception of the U.S. Supreme Court.

By that action they invited the use of the same precedent by the Republicans four years later to include Supreme Court nominations.

For the short-term advantage of putting judges on the courts approved only by Democrats without any consultation with the minority, they opened themselves to the Trump-era cascade of conservative judges onto the federal courts.

As we saw during the Kavanaugh hearings, the majority freed of the existence of the filibuster, was able to fast-track the entire process. Put aside the notion that a filibuster-armed minority could have blocked this nomination, they could have and would have told Chairman Sen. Chuck Grassley, R-Iowa, "No files, no confirmation and/or “No full FBI investigation, no confirmation." And, they would have been able to make it stick.

Instead, they lost any leverage on the selection and confirmation of the swing-vote likely to shape the Supreme Court for decades to come.

I don’t think of President Obama as a short-sighted leader, but in this instance, I think he fails that test.

Richard A. Arenberg is a Visiting Professor of the Practice of Political Science and a Senior Fellow at the Watson Institute for International and Public Affairs at Brown University. He worked for Sens. Paul Tsongas (D-MA), Carl Levin (D-MI), and Majority Leader George Mitchell (D-ME) for 34 years. He served on the Senate Iran-Contra Committee in 1987. Arenbergis the author of "Congressional Procedure: A Practical Guide to the Legislative Process in the U.S. Congress." He was co-author of the award-winning "Defending the Filibuster: Soul of the Senate" named “Book of the Year in Political Science” by Foreword Reviews in 2012. A 2nd edition was published in 2014. The U.S. Senate Historical Office published “Richard A. Arenberg: Oral History Interviews” in 2011. He serves on the Board of Directors of Social Security Works and the Social Security Education Fund. He is an affiliate at the Taubman Center for American Politics & Policy. His work has appeared in The New York Times, The Washington Post, the Providence Journal, and The Boston Globe. He is a Contributor at The Hill. Follow him on Twitter @richarenberg.

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