By John Krull
For The Republic
Perhaps it is no wonder that some members of the U.S. Senate view the filibuster as a divine instrument.
After all, it does seem to have magical, mystical powers.
At times, it can disappear — such as when U.S. Supreme Court nominees are being elevated to the nation’s highest bench or when the debt ceiling is about to collapse.
At other times, though, it not only reappears, but takes the form of an insurmountable obstacle. Such instances seem to include guaranteeing equal voting rights for all Americans and investing in the infrastructure and other needs of most of the country.
Whether it is present or not, one thing about the filibuster is clear.
Using it is a way for a minority — even a pretty small minority — to exert its will and prevent the majority from doing so.
Some political figures worship the filibuster and, in fact, the idea of minority government with the devotion they normally would reserve for houses of worship.
The most recent penitent to pray at the altar of preserving minority rights is the former vice president of the United States, Indiana’s own Mike Pence.
In a column that appeared in The Washington Post, Pence compared congressional Democrats pushing for voting rights legislation to the thugs who overran the Capitol on Jan. 6, 2021. Both sets of people attempted to rig the outcome of an election, Pence wrote.
“Their plan to end the filibuster to allow Democrats to pass a bill nationalizing our elections would offend the Founders’ intention that states conduct elections just as much as what some of our most ardent supporters would have had me do one year ago,” the vice president argued.
Pence has a point, albeit one undermined by key silences in the past on his part.
The Founders did want to make sure that the majority could not run roughshod over the rights of the minority. Many of the provisions in our governmental structure are designed to make sure that the individual or a minority retain some sovereignty.
The cliché is that they wanted to avoid “a tyranny of the majority.”
That is a legitimate concern.
But creating safeguards against a tyranny of the majority does not mean that the Founders — or modern-day Americans, for that matter — should establish and entrench a tyranny of the minority.
Pence and others who think like them are arguing that the filibuster is a fine bulwark and wonderful preserver of minority rights when his and his party’s interests are threatened, but not so much when the shoe is on the other foot.
Pence was silent when his Republican Party used the barest majority to ram through two Supreme Court appointments in a presidential election year. They did this after first arguing that such appointments should not take place during such campaign seasons. That was when Democrat Barack Obama tried to elevate Merrick Garland. The GOP troops reversed course when Republican Donald Trump opted for election-year appointments.
In none of these cases did the filibuster or any concern for the rights of the minority apply. The so-called “nuclear” option — dispensing with the filibuster — when it comes to court appointments became the normal process with then-U.S. Senate Majority Leader Mitch McConnell, R-Kentucky.
Given that a Supreme Court appointment is for life and can shape American society for decades, one would think that achieving something resembling consensus when picking a justice would be desirable.
But, in the eyes of Pence and others who think and vote like him, apparently not.
In those instances, a tyranny of the minority or even the slimmest majority is just fine.
That’s the problem with treating the filibuster as a now-you-see-it, now-you-don’t mythical creature.
It either should be in existence or in play all the time or not at all.
If it is in play, it can force majorities to negotiate with minorities. It also can prod minority factions to make reasonable concessions because they know that, should they become the majority, the other side will have the same tool at its disposal.
Ideally, that’s what we American should want from our deliberative bodies — deliberation.
Not magic tricks.
Just plain old common sense.
If the filibuster is a good idea sometimes, it should be a good idea all the time.
Otherwise, it should go.