The Liberty Hawk
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The Liberty Hawk

On The Filibuster and Fascism

Question: Is opposition to the Senate filibuster fascist?

Objection 1: The filibuster isn’t in the Constitution. Therefore, opposition to it is closer to the vision of the Founders. The minority should not have the power to obstruct the will of the majority because that undermines democracy. Opposing the filibuster could not be fascist because the filibuster is unconstitutional and disruptive of good governance.

Objection 2: The 50 Democratic Senators represent more Americans than the 50 Republican Senators. Therefore, it is not fair that those representing a smaller portion of the Country should be able to prevent legislation popular with a clear majority of Americans from passing. Opposing the filibuster is not fascist because the filibuster is used in unjust ways and interferes with the popular will of the people.

Objection 3: Mitch McConnell ended the filibuster for Supreme Court nominations and forced through Amy Coney Barret just weeks after Justice Ginsburg’s death. He would end the legislative filibuster in a heartbeat if he had the chance.

On the contrary, as Publius (James Madison) writes, “When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and private rights of other citizens.” He continues saying that when a simple majority is all that is needed to enact lasting radical change, “we well know that neither moral nor religious motives can be relied on as an adequate control.” (Federalist 10)

I answer that, therefore, a call to remove the legislative filibuster and weaken the power of the minority or opposition party of a government is a call for fascism.

The will of a simple majority should never be able to silence a minority. When we allow a majority to silence all opposition and reject compromise, we move dangerously close to authoritarianism and the abandonment of our freedoms.

The filibuster encourages compromise and cooperation from the factions of the Senate. Because the Senate represents the 50 States, rather than the 330 million people, of the United States, it makes sense that, in order to maintain the Union, it is necessary to have a legislative filibuster. The Senate gives an equal voice to each State, a reality that is an essential part of our Republic. Abandoning that risks breaking apart the Union.

Reply to Objection 1: The Founders were very clear in their opposition to the tyranny of the majority as can be seen in The Federalist Papers. The Senate acts as one of the many checks and balances against this tyranny. The filibuster is just a small part of that role.

The requirement that any legislative change requires a supermajority to allow a vote may not be an explicit provision of the Constitution, but it is in the spirit of the Constitution as a means of reining in tyranny and forcing compromise. The power of the minority to rein in the power of the majority is the strength of our government and should not be tossed out because it is politically inconvenient.

The Senate functioned for decades with thin majorities and robust filibuster rules. Rather than removing the filibuster and welcoming tyranny, the Senate should work on the root cause: a growing partisan divide that has handicapped compromise and comity.

Reply to Objection 2: The Senate was never designed to be representative of the people. The Senate provides an equal voice to all States in the federal government. Legislative changes should require a larger buy-in than merely half of the States. Otherwise, we risk fracturing the Union.

The obstruction of the majority’s agenda is not per se unjust. As Plato shows in The Republic, justice is not merely the will of the stronger. A majority forcing its will upon a minority is not justice, it is fascism.

Reply to Objection 3: Unjust precedent and noble goals do not justify destructive and dangerous means. Ending the filibuster when you have a razor-thin majority because you have convinced yourself that your political opponents would do the same thing is illogical. Preemptive strikes and escalations do grave harm to the Republic. Mutually Assured Destruction doctrine only works as a deterrent when neither side actually attacks.

The ends do not justify the means by which they are accomplished. Ending the filibuster to pass even the noblest of causes is still wrong because the end result is the loss of one of the means the minority can use to restrain the majority and hold authoritarianism at bay. Eliminating the filibuster may allow a net good to pass today, but the loss of the filibuster will result in a net evil to pass tomorrow.

Ending the legislative filibuster is a significantly more dangerous move than even ending a filibuster on Supreme Court nominations. But weakening the filibuster was wrong when Harry Reid did it for Barack Obama, it was wrong when Mitch McConnell did it for Donald Trump, and it will be wrong if Charles Schumer does it for Joe Biden. You will not always have the majority and the power you grant yourself today will belong to your enemy tomorrow.

Q.E.D.

P.S. Apologies to all of the Thomists I know or studied under.

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Thaddeus R. Winker

Thaddeus R. Winker

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Independent, snarky, constitutionalist who happens to like Dungeons and Dragons and Star Wars.