Just a few years ago, many Republicans wanted to abolish the filibuster. They thought it was unfair, maybe even unconstitutional, that the Democratic minority in the Senate was blocking certain judicial nominations. Today, it is progressives who complain that filibusters are obstructionist and undemocratic. If not for the filibuster, they say, health care reform likely would have passed months ago, and other liberal priorities--cap-and-trade, another stimulus, etc.--would be well on their way to President Obama’s desk.
Despite the recent attacks from both sides of the aisle, the filibuster lives on. The reason, of course, is that Republicans opposed the filibuster when they were in the majority, but unanimously support it now that they find themselves in the minority. Democrats, similarly, came to appreciate the (very strong) case for eliminating the filibuster only after they retook Congress in 2006. Since 67 votes are typically required to amend Senate rules--more than either party has commanded in over 40 years--this predicable partisan pattern makes it nearly impossible to get rid of the filibuster.
An unlikely source may help to break the impasse: the work of political theorist John Rawls. A generation ago, Rawls argued that principles of justice should be chosen behind a “veil of ignorance.” That is, people should select ethical rules as if they didn’t know how wealthy they would be, what talents they might have, or what gender, race, or religion they would belong to. Only such policies would be untainted by self-interest and, therefore, fair.
It asks too much of senators--among the most self-interested of creatures--to approach the filibuster as though they were behind a veil of ignorance. They know all too well who would benefit (President Obama and the Democrats) and who would be harmed (Republicans and grandstanding centrists) were the filibuster suddenly to be amended or eliminated. It is naïve to think they might put this knowledge aside.
The passage of time, however, creates an opportunity to drape a veil over politicians’ eyes. There is no way Republican senators would agree to the immediate abolition of the filibuster. But what if the proposal on the table was to get rid of the filibuster in 2017? By then, even a potential second Obama term would have ended. Every sitting senator would have faced re-election at least once. And, most importantly, there is no way to know which party would be in the majority and which would be in the minority.
A debate now on whether to eliminate the filibuster in the future would transform senators’ decision-making calculus. The key questions would no longer be whether they enjoy the personal clout conferred by the filibuster, or whether it advances or threatens their parties’ agendas. The issues, instead, would be whether it makes sense for almost all Senate business to require a supermajority, whether 40 senators representing as little as 10 percent of the population should be able to block a bill, and whether the Constitution’s many checks and balances should be supplemented by yet another procedural obstacle. Many more senators likely would say no if self-interest and partisan advantage were, for the most part, removed from the equation.
The delayed abolition of the filibuster is not as quirky a proposal as it sounds. Throughout American history, in fact, reformers have employed veil-of-ignorance techniques to circumvent contemporary opposition to sound policies. The Constitution, for instance, barred Congress from banning the slave trade until 1808. Southern states acquiesced to this provision because their economies in 1787 required slave imports, but they weren’t sure to what extent those imports would still be needed 20 years later.
Similarly, the 1985 Balanced Budget and Emergency Deficit Control Act called for mandatory spending cuts if future deficits exceeded certain amounts. The measure appealed to many congressmen because they didn’t know what the exact cuts would be or when they might be imposed. And NAFTA stated that certain tariffs would be lifted only after 15 years had elapsed. As scholars have noted, producers who were not internationally competitive in 1994 “anticipate[d] the possibility that by the date of implementation they would change sides and market their goods abroad.”
The filibuster is not the only contemporary issue that could be addressed through a time delay. A Texas lawmaker, for example, recently proposed a photo ID requirement for voting that would not take effect until 2014. By then, it is hoped, poor and minority voters would be educated about the requirement and its partisan impact would be less clear. Along the same lines, Yale’s Bruce Ackerman has called for senior presidential advisers to be approved by the Senate--but not until 2017, when “it is anybody’s guess who will control the White House.” Perhaps most promisingly, election law expert Adam Cox recommends that redistricting decisions by state legislatures not take effect for several years. This time lag would reduce the potential for gerrymandering by creating valuable uncertainty as to probable election results.
A temporal veil of ignorance is thus a powerful tool for reforming any policy that is currently supported primarily out of self-interest. With changes to the status quo postponed until sometime in the future, erstwhile skeptics become free to think more objectively about proposals’ merits. The result could be not just a less dysfunctional Senate but also--as Rawls predicted--better public policy and a fairer democracy.
Nicholas Stephanopoulos is an attorney in Washington, DC, specializing in election law.