News Journal: Despite abuse, filibuster served important purpose

What makes American democracy different, and I believe better, than it is in other countries is the result of our founders’ apprehensiveness about an unrestrained majority.

In his first inaugural address, Thomas Jefferson spelled out this difference when he said, “All …will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possesses their equal rights, which equal law must protect and to violate would be oppression.”

We have seen over and over again how majority-elected governments in Putin’s Russia, Morsi’s Egypt, Erdogan’s Turkey, and many other countries end up crushing the losing minorities. That hasn’t happened here, in large part because the power to protect minorities has rested in two institutions –the Supreme Court and the United States Senate.

That is why I am so troubled by last month’s vote to change Senate rules so that 60 votes are no longer required to end cloture when it involves some presidential appointments. From now on, a simple majority –51 votes –will be enough to confirm some nominees.

Although the filibuster has been abused in the past by both parties, there has been an unprecedented escalation in its use since President Obama took office.

The minority’s argument that the three vacancies in the D.C. Circuit Court of Appeals should not be filled because the Court didn’t have enough work to do was disingenuous. They were also holding up confirmation of some nominees, not because they were unqualified, but because the nominees were going to head up agencies they disliked. These are difficult times, and it is essential that the President be able to put qualified people into management positions to effectively run the government.

And yet …

The change in the rules became known as the “nuclear option” for good reason. I believe it will destroy one of the most important safeguards in our legislative process. I believe we have taken the first step on a slippery slope that will end up eroding all of the traditional rights of the minority party in the Senate. I believe it was the wrong move for both process and political reasons.

I point again to what happens in other countries when minority rights are not protected. That, it seems to me, is argument enough on the process side.

When I was in the Senate and there was any discussion about ending the filibuster, I always said that no Senator should be able to vote to eliminate the filibuster until he or she had spent at least a two-year term in the minority. I guarantee that further changes in the rules are coming, and they will ultimately have the Senate operate like the House, where there are hardly any minority rights at all. That’s not what our founders had in mind when they purposely designed the Senate as a deliberative body that would slow down any rash legislation emanating from the House.

The political implications are obvious. No party stays in power forever. In fact, many of the Senate Democrats who voted for the new rules might find themselves in the minority after the 2014 elections. As of now, the polls show there is at least a 50-50 chance that Republicans will take control of the Senate as well as the House. Given last week’s vote, will they be in the mood to protect minority rights if that happens?

If that does happen, it doesn’t take a crystal ball to see exactly what the last two years of the Obama administration will look like. He would still have veto power, and he would probably set new records for how often that power is exercised. But there would be no new legislation of any consequence. Politically, it would be an exceedingly ugly two years.

Americans are still hurting economically, and rightly blame a government that can’t seem to agree about anything. We need major changes in Washington, but the massive assault on minority rights that we have just witnessed is not one of them.

(If you would like an in-depth discussion of its history and importance, read “Defending the Filibuster: The Soul of the Senate,” a book by Richard A. Arenberg and Robert B. Dove. Sen. Mark Udall and I wrote a foreword to it.)

Ted Kaufman is a former U.S. senator from Delaware.