Filibuster and the Super-Judiciary


The United States of America had a longstanding rule banning corporate funding of political campaigns. The purposes of this law were worthy, and in practice I don’t think it was doing much harm, but the conservative justices who overturned it on free speech grounds had some non-absurd objections to the old rule. The DISCLOSE Act, which would have required corporations (including both businesses in the conventional sense and also a wide array of nonprofits) to identify themselves when they sponsor political ads and in some cases to reveal donors, was a good solution to this. It’s a way of achieving the former rule’s goal of preventing wealthy business executives from exerting even more influence over the political process while meeting the Court’s constitutional concerns.

I’m not a huge fan of strong judicial review systems such as the one we have in the United States, but all systems of judicial review are built around the possibility of this kind of productive interplay between judicial and legislative branches. Except there’s a problem here—thanks to a filibuster mounted by 41 Senators (John Cohn notes the special hypocrisy of Susan Collins, Olympia Snowe, Scott Brown, and John McCain) the new bill can’t go forward even though it has majority support in two branches of congress and the White House.

This is one of the under-discussed consequences of filibuster-induced legislative paralysis. In ordinary times, the judiciary’s ability to remake policy is typically pretty constrained. This is especially true of judges’ role in statutory interpretation. It’s not that judges don’t play a big role, but whenever judges act against a clear consensus among elected officials, they find themselves de facto overruled by congress’ ability to pass new laws. Thanks to routine filibustering, however, the balance of power shifts in and John Roberts plus 41 Senators can prevail against the entire rest of the political system.