Monday, December 21, 2009

Attention, filibuster-busters: remember 2002-2006?

"I just look at this institution as really the last bastion of protecting the rights of the minority, and we should be very careful before we try and make any changes."
         - Senator John Warner (R-VA), April 19, 2005

Warner was one of a majority of 55 Republican senators when he made the statement above. He was also a member of the so-called Gang of 14 who forged a compromise over Democrats' hold on some of Bush's judicial nominees, averting a Republican move to end the filibuster specifically for judicial nominees (perhaps because they still remembered that during Clinton's presidency, they blocked far more judicial nominees than the Democrats did under Bush).

Progressives in their turn should remember Warner's words as, driven mad by a Joe Lieberman empowered by a Republican party incapable of compromise, they call for an end to the filibuster. Today Paul Krugman joined the chorus:
Nobody should meddle lightly with long-established parliamentary procedure. But our current situation is unprecedented: America is caught between severe problems that must be addressed and a minority party determined to block action on every front. Doing nothing is not an option — not unless you want the nation to sit motionless, with an effectively paralyzed government, waiting for financial, environmental and fiscal crises to strike.

By now the arguments are familiar: the filibuster is an historical accident, not in the Constitution. Its use has metastasized, first in the Clinton years to a peak of more than 30 in 1999, and then again since the Democrats won control of Congress in 2006, to 60 last year.  Filibusters or threatened filibusters now affect 70 percent of legislation. What used to be a tool of extraordinary resistance is now used weekly to block the will of the majority on matters great and small. Get rid of it!

There may be a case for adjusting the number of Senate votes required for cloture down -- it has been adjusted several times, most recently from 67 to 60 in 1975.  Or for the kind of proposal cited by Krugman, introduced by Lieberman and Tom Harkin in the mid-90s: "Sixty votes would still be needed to end a filibuster at the beginning of debate, but if that vote failed, another vote could be held a couple of days later requiring only 57 senators, then another, and eventually a simple majority could end debate."  That, though, sounds like a slo-mo abolition of the filibuster: you can slow a bill's progress without a majority, but you can't stop it.

Democrats should think long and hard, though, before demanding any change in rules.  It's true that the Republican party has paralyzed attempts to grapple with the major problems facing the country, induced by a combination of radical ideology and addiction to short-term tactical advantage to vote en masse to block legislation so centrist, so hedged by worries about big government and big deficits that Republicans even of Gingrich vintage would have embraced it, or even created it. (As Paul Starr has documented, the pending health care bills are a compendium of Republican ideas to extend coverage. The stimulus bill was one-third tax cuts and hewed to the center of economists' recommendations.)

Paradoxically, though, the very radicalism of the Republican party highlights the need for rules that, as Warner said, protect the rights of the minority. We have just emerged from an era of right-wing dominance in which the filibuster -- though used far less by Democrats than Republicans are using it now -- was a bulwark against extremism. The filibuster kept eighteen of Bush's most extreme judicial nominations off the bench. Without the possibility of filibuster, Wall Street might now be gearing up to absorb a chunk of Americans' social security savings.

Conceivably we are one terrorist attack or one second-wave economic collapse away from returning an even more radicalized Republican Party to power. As insurance against the unlikely but possible specter of the U.S. electing a dangerous demagogue like Palin, a self-avowed autocrat like Giuliani,or a principle-free chameleon like Romney, I would not throw away a procedural block to legislation that might strip our civil liberties, gut environmental protection and other important regulation, tax-cut us into swift bankruptcy, or otherwise undermine the country's prosperity, liberty and security.


  1. Maybe they should just make filibusters like NFL timeouts: Only so many allowed per game. I'm not a big fan of the filibuster because it does mean that the majority (even a fairly — almost historically — large one) does not, in fact, have control of outcome in any way shape or form.

    Claiming that "setting the bar" at 60 votes will somehow avoid the bad things that only 50 votes would not is valid, but to me that is arbitrary thinking: If 60 is good, surely 66 or 70 would be better?

    Like I said, I think that the filibuster should go, but I'm willing to compromise on some effort to procedurally curtail it and make it more difficult or costly to apply.

  2. This is a good post, and certainly some convincing, necessary points were made, but I think it kind of assumes it is always a good thing to prevent radical parties from passing terrible legislation. If the Republicans were allowed to privatize Social Security, pass more tax cuts for the rich, and tilt the balance of power even further to the executive branch, I think it's safe to say the GOP would be in even worse shape politically right now.

    But as it stands today, an even more radicalized Republican Party is not only less than a year away from making a comeback, but still able to prevent Democrats from enacting the legislation they campaigned on. And of course, they too justify the filibuster by claiming the Democratic Party is pushing "radical" legislation. Parties that win elections should be allowed to govern, meaning they should be given the chance to do what the people wanted them to do, as well as given the chance to pass utterly terrible and unpopular legislation.

    There are already enough institutional checks on power in our government, not to mention the check created by partisan gridlock. The filibuster needs to go.