Legislative Obstruction

· Political

If there is one issue that gets awkwardly danced around by Republicans due to the fact that it is considered a political minefield, it’s this one. You hear it all the time from liberals. Republican = Party of No, the Naysayers, the majority for the Do Nothing Congress, the list of uninteresting names goes on and on. As such, the point, which is illuminated with American history, must be made.

There is absolutely nothing wrong with obstructing legislation on principle.

It is true that no one likes an obstructionist. There’s a rightfully harsh stigma attached to the name and Republicans, when accused of such, will deny it to their grave. And of course it’s not a practice that is in the spirit of what most of the American people actually want accomplished, which is friendly bipartisan legislative partnership and progress through cooperation. We want them to get along and we want them to get things done (mind you, that’s asking a lot).

What is the greatest danger democracy poses to liberty? In the debate over our founding, this question went back to the Articles of Confederation which went too far in preventing just about any sort of legislation or executive measures from becoming law ever. Obviously it needed a relook but the question never went away. The answer came from Alexis de Tocqueville: Tyranny of the omnipotent majority. In Chapter 15 of his Democracy in America, he discusses this and how it festers in America. The majority rules and can therefore do what it wants. It can oppress the minority in the name of Democracy and the minority would be powerless to stop it. The omnipotent majority can democratically destroy liberty and it may even democratically overthrow the existing democratic system to get what it wants.

“Jefferson has also expressed himself in a letter to Madison: ‘The executive power in our Government is not the only, perhaps not even the principal, object of my solicitude. The tyranny of the Legislature is really the danger most to be feared, and will continue to be so for many years to come…’ I am glad to cite the opinion of Jefferson upon this subject…I consider him to be the most powerful advocate democracy has ever sent forth.”

The fear of a tyrannical majority is nothing unfounded. It is furthermore the reason they agreed to a dual legislation, in which one house is representative of population and the other house is represented by equality. If factions cannot be denied to exist lest we destroy liberty, then the tyranny of the majority must be checked through bicameralism, in which the definition involves the increased difficulty in passing legislation, regardless of the benevolence of policy. The fear of a tyrannical majority is also the reason they did not believe in a direct democracy. I can give you a modern example of this: Proposition 8. Passed directly by the majority of California voters and denying the homosexual minorities the right to marry. Whether it is for good reason or not, what is that if not a most timely example of omnipotence?

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Obstruction in Congress is discussed in two ways, only one of which is actually correct. Nancy Pelosi was asked by Jon Stewart if it was okay to vote against something if you didn’t like it but also if you knew that it would pass by majority vote. She said yes and her defense was simple – she believes that people vote what they believe. Fair enough. But she also said that if that no vote is preventing passage (which she identified as her responsibility as Speaker), then they shouldn’t do that. So her philosophy was: it’s okay to vote how you think as long as the legislation I want passed gets passed, but if your vote among others prevents that, you’re making my life difficult and you should be punished for it.

Fact is she’s wrong. If you are a Congressman and you vote against a bill on principle, you’re not obstructing. And if you are joined by 217 other Congressmen against that bill, that’s not obstruction. That’s defeating it, which also means that by that definition, Republicans were perfectly in their right to vote no on the stimulus, on the Affordable Care Act, Cap & Trade, the DREAM Act, and everything else they overwhelmingly voted against. They acted on principle and there’s nothing wrong with that. If the president vetoes a bill, it is not obstruction. And if the Supreme Court invokes the Constitution to strike down an existing law, that’s not obstruction either. That’s Separation of Powers, Checks and Balances, and the basic legislative process.

Despite many Democrats’ attempts to pin it as such as a way of scapegoating their own failures as a legislative body, obstruction is not the same as defeat. Obstruction is blocking passage through continuous debate, or by attaching unpopular amendments whether in committee or on the floor.

In keeping with the understanding of how dangerous tyranny of the majority is, there are occasions in American politics where voting no is simply not enough. The filibuster is often the only tool the minority has to check against the tyranny of the majority, particularly when you have a situation where the House, Senate, and White House are encompassed by that majority (omnipotence). Of course, in modern times, the implied threat of the filibuster is often more dangerous and far more regular than a filibuster itself. But that doesn’t stop some from making good on the threat.

Politicians are supposed to represent the interests and opinions of their constituents. Let’s put you back into the shoes of a politician, this time a Senator. If your constituents overwhelmingly tell you to prevent passage of a bill and tell you that they will have you replaced should you defy them on this, and if you want to get re-elected to continue fighting the good fight whatever that may be, you are going to oblige them because you don’t have a choice in the matter. You will vote No whether you like it or not. And if there is even the slightest chance to delay or destroy the incoming legislation that your constituency is so angrily against, and they know you have this chance, you will seize upon that opportunity for the same reasons. You’ll oppose the bill in Committees and offer amendments to gut them. You’ll vote against their passage. You’ll vote against the rule attached to the bill so it can be ripped apart on the floor. You’ll threaten and support the filibuster, heck, you’ll be the filibusterer if you must. Why go to such extremes? Because you have to be able to look your constituents in the eye and tell them truthfully that you fought this repugnant piece of legislation tooth and nail. You have to tell them that you did everything that you possibly could to prevent its passage, that you vowed to stop it at any costs, and that the only reason you failed (if you did) is because the majority’s ruling was too great. Your re-election depends on it and that, my friends, is not rhetoric. It is a brutal and cold hard fact of American politics.

Obstruction in legislature may not be expressly written in the Constitution but the Founders believed in legislative difficulty and for obstructive tools to be available for the minority to utilize in order to prevent the single greatest threat to liberty and democracy – tyranny of the majority. And given the political realities we face today, sometimes blockage is not merely acceptable but the most prudent course of action one can take if he/she hopes to represent his/her constituents. It also means you have backbone – you have the courage and will even in the face of unpopularity to say, no, to something that you believe will be detrimental to the health and welfare of the nation.

–        Vivek

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