Although the American Constitution does not provide for the filibuster, the founders of this country were very much concerned about protecting the rights of minorities. The checks and balances between the Congress, President, and Judiciary built into the Constitution were designed to make it difficult to pass legislation that infringed on the rights of important minorities. The Bill of Rights was added to the Constitution to solidify this protection.
Alexander Hamilton, James Madison, and John Jay in their essays in the superb Federalist Papers argued for the Constitution against a skeptical New York public. They recognized the necessity of having a constitution that protected minorities from “ephemeral” majorities, and they claimed the separation of powers, and other aspects of the Constitution, would succeed in protecting most minorities. The founding fathers were not believers in a naïve form of democracy where simple majorities should always have their way.
Posner gives a brief history of the evolution of the filibuster rule in the Senate. The requirement that at least 60 senators, or 60% of the senate members, are needed to impose cloture and cut off debate is not an overly stringent requirement for issues of any real significance. The size of the supermajority needed to cut off debate is considerably smaller than the Constitutional stipulated two-thirds majority required to overcome a presidential veto of a bill sent from Congress. Surely, for example, a simple majority should not be sufficient to commit a country to a major war, for that could involve both a large sacrifice of the lives of men and women from different regions and backgrounds, and much higher taxes and the creation of large amounts of public debt, although I do not believe any senator has ever tried to filibuster against US entry into a war.
Several senators from the South in the 1950s tried to use the filibuster to block civil rights legislation. Since for almost a century after the Civil War the South had been preventing its sizable black population from obtaining a decent education, good jobs, judicial protection, and common decency, many in the North were outraged at this filibuster attempt to block the provision of better education, voting rights, and other protections to Southern blacks. Nevertheless, the civil rights legislation would require major changes in the South, and it is not unreasonable that more than a simple majority of Senate votes should have been necessary to implement these momentous (and also highly desirable) changes. However, it should have been possible during the 1950s when Southern senators were filibustering to use a supermajority in the Senate to invoke cloture to end the filibuster.
The many proposed changes in health care in the House and Senate bills is the most controversial and important of all the current bills working their way through Congress and President Obama’s agenda. Expenditures on health care currently absorb 16% of American incomes, and this percentage continues to grow. Since many of the changes in these health bills would have large effects on taxpayers and patients, any major new health bill should be subject to a possible filibuster that would require the votes of at least 60 senators to cut off further debate.
The President has said that the debate has gone on long enough, and that further prolonged debate on health reform would be useless. He therefore proposes to use the “reconciliation” procedure to avoid any filibuster and allow a health bill to be passed with a simple majority in the Senate (and of course the House). I cannot say whether this is a wise political maneuver, but I do believe the use of reconciliation in this case is harmful from the point of view of the country’s welfare.
Despite the long debate, many provisions of both the House and Senate bills remain highly controversial. These include, among many others, the way the uninsured would get coverage, the de-emphasis on health savings accounts, the postponement until 2018 of the elimination of the tax advantages from expensive employer-based health plans, no increase in the ability of persons and companies in one state to contract with insurance companies located in other states, and especially the minor efforts to raise out of pocket expenses by consumers of health care in order to reduce their overuse of doctors, drugs, and even hospitals. Such a badly designed health care bill would on the whole worsen rather than improve the American health care system, and it should not be allowed to slip by through the back door of reconciliation.
So my conclusion is that the supermajority requirement of invoking closure to cut off Senate debate is useful protection not only to minorities, but also to overly hasty passage of controversial legislation. People on all positions will sometimes be frustrated by the need to have such a supermajority, but in the long run most of the time they will be happy that such rules are in effect.