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Why the Filibuster Isn't Going Anywhere

danps's picture

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The filibuster has been all over the news lately, and on the left there is a growing consensus that it should be changed or abolished. For old times' sake I decided to revisit the last time filibusters were front and center in politics: the Gang of Fourteen compromise that loosened up Democratic filibusters of some of George Bush's judicial nominees.

My general recollection was that neither side was particularly happy about it. A local conservative columnist (sorry, couldn't find a link) sourly wrote something along the lines of, "well I guess politics is beanbag after all." Remember this happened in 2005, which is several geological ages ago on the Right Wing Freakout Timeline. The outraged polemics make for fabulous reading now that the GOP is in the minority. Andrew McCarthy howled that it was "an obstructive tactic that unabashedly nullifies majority rule" and spluttered (emph. in orig.)

the filibuster was not used at all throughout much of the Senate's history. It is currently unavailable for over two dozen types of legislative proceedings. And it has never, ever been systematically employed in connection with judicial nominations. Thus, it is difficult to understand how altering or eliminating it in that context could credibly evoke visions of mushroom clouds rising above a smoldering Capitol.

Still, "nuclear option" has stuck....With "Armageddon" securely stamped on the rule change — one that would restore a two-century status quo of simple-majority confirmations while guaranteeing nominees only a vote, not a win — those seeking such a change were naturally cast as "extremists."

There was plenty of other commentary on the right about the undemocratic nature of the filibuster, but it was not much more popular on the left. I don't recall, and couldn't find, any prominent voices taking the position of, hey it's great that the Democrats had the filibuster at their disposal! The closest thing I found was a lukewarm endorsement by Kos on the grounds that it was making conservatives nuts. Digby summed up the feelings on the left best, writing (emph. in orig.) "I want that nuclear option, I need that nuclear option. I'm fucking dying to have that fight."

Critics on both the left and right noted the intolerably vague language of the agreement that ended the filibuster, and that offers the best clue why the filibuster will likely be retained. It was what used to be called a gentlemen's agreement, something that wasn't formalized but that would be maintained through mutual understanding and occasional massaging.

They want to be able to endlessly flatter and indulge each other in the name of comity (in the last few weeks I've come to hate that word). They want the Senate to be a place where personalities trump party or policy, where managing relations is the first order of business - like a soap opera or a never-ending episode of a reality show where no one gets voted off. It is no coincidence that the membership of the Gang of Fourteen is a who's who (Landrieu, Lieberman, Nelson, Collins, Snowe) of the high maintenance, egomaniacal misanthropes gumming up health care reform.

Opposition to it does not break down along left/right lines, but on establishment/outsider lines. The inability to pass health care reform on a simple majority vote highlights the differences on the left between those who ground policy positions in Beltway conventional wisdom and those who do not. Frustration with an opaque, clubby body that to all appearances is in the thrall of lobbyists has begun to peak. It is creating the same kind of anti-DC strange bedfellows who support auditing the fed and (to a lesser extent) opposed the FISA Amendments Act last year. The filibuster is one of the most visible symbols of that broken system.

Norman Ornstein is one of the few people to have defended it. During the Gang of Fourteen episode he argued that failure to keep it would cause the Senate to operate more like the House, which he derided as "a cesspool of partisan rancor." He did not make a Constitutional case for it, though, or say it provided some essential function to the system of checks and balances. He just likes the way it helps encourage his particular concept of decorum.

The same is true of Senators. They want to maintain a system that maximizes their opportunities to demand to be catered to. Anything that presents more opportunities for obstruction gives individual Senators more chances to exert leverage, and more chances to be fawned over. That, much more so than parliamentary requirements, is what keeps the filibuster in place. Changing it will require a change in the capitol's very culture, not just some slick procedural maneuvering.

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letsgetitdone's picture
Submitted by letsgetitdone on

the filibuster has to go, and can be still be beaten if progressives begin to make an issue. We need to begin to couple the consequences of legislation to the filibuster's existence and use. It's not simply a question of blocked legislation, but of weakened legislation.

In the current session the filibuster has sabotaged change. It has resulted in a stimulus package that is only half the size needed to end the recession. Because of the threat of it we have a jobless recovery. We can attribute unemployment rates and levels to the threat of the filibuster and the need for 60 votes.

We can attribute the loss of a strong hcr bill to the existence of the filibuster. We can attribute the slow and very inadequate progress in sustainability, and climate change legislation to its existence, and also that we are a year into the this administration and have no eductaional reform legislation yet.

In area after area we are prevented from arriving at effective solutions to our national problems due to the filibuster. It has to go and it will go if we make the case and keep hammering at the need for it to go. And after we're done with the filibuster we can go after the seniority system, a very big factor in the level of bribery we see in the Senate and another big reason why important legislation gets blocked.

Submitted by lambert on

And it's "no accident" that this is the course that the access bloggers are taking, and that its Krugman's recommendation.

For Shystee's Process Dodge, see here.

I think VastLeft would put this in the category of a "progressive" roach motel. I'd put in the Department of You Can't Buff a Turd.

No, I don't have an alternative. The opportunity cost of following the access blogger's prescription is, I would argue, constructing one.

letsgetitdone's picture
Submitted by letsgetitdone on

Are you saying that if 50+1 votes were all that we needed to pass legislation in the Senate, we still would have gotten an $800 Billion stimulus bill and the Senate hcr bill we have now?

If so, I think that's a very hard argument to make given the influence of the blue dogs and some Republicans on the shaping of these legislative initiatives. I'm not saying that if we did not have the filibuster everything would be hunky dory, but I am saying that the majority party at any particular time would have much greater accountability for inaction and that that would be good for our Democracy. I am serious when I say that the filibuster in this session has cost us millions of jobs. For that reason alone it should die. If regular people understood this connection it would.

DavidByron's picture
Submitted by DavidByron on

but I think that is true. The easy proof is that if 51 senators wanted a better bill passed they could and would have done it. Therefore since that didn't happen it is clear that there are not 51 senators (I assume the White House would vote against so it would need to be 51 btw, not 50+1) who want a better health care bill that bad.

After all they wouldn't need to wait on Reid. His leadership is simply another "process" issue.

letsgetitdone's picture
Submitted by letsgetitdone on

Obviously, I think there would be 51 votes to pass a better bill, if there were no filibuster. While it's true that these votes don't exist to both use the nuclear option and vote for that better bill, I think that if the progressive movement mobilized against the filibuster and made its existence an issue, the will to use the nuclear option when there are 51 votes for a better bill would be there.

As long as its existence is of no concern of people who support the Senators, nothing will be done about it.

Submitted by lambert on

... there would be another one.

I mean, how did this magical 60 vote thing come into being, anyhow? Every quote I've ever seen is in the passive voice. There was quite the advocacy, back in the day, for ramming a good bill through with 51. If there weren't even any moves to do that, what does that tell you? Plus we were told by Big Orange and the rest of the usual suspects that getting to the 60 vote threshold would cause excellent things to happen. We gave the Dems that, and nada. Seems like Lucy and the Football to me, and if the 60 vote thing goes away, there will be something else. Surely the real problem with the legacy parties is not procedural arcana, but the ownership structure?

letsgetitdone's picture
Submitted by letsgetitdone on

This is an ad hominem argument. It doesn't address what I argued about the filibuster but just labels my argument as a "meta version of the process dodge" and as what the access bloggers want, and therefore as invalid. Neither one of these makes the argument invalid. The question here is whether the filibuster has or has nor cost us a much more robust reform bill and millions of jobs in this session. I think it's pretty clear that it has, and that either consequence is reason enough to get rid of the filibuster and never let such a thing happen again.

Submitted by lambert on

So I'm using shorthand and assuming a knowledge of the history of the site.

* * *

That said, I'm not sure how naming* an argument (the word I would use instead of labelling) can be an ad hominem attack -- unless the definition be so broad that discrediting a person and discrediting their argument are seen as the same thing, which I would argue makes the very idea of ad hominem vacuous.

That said, please read Shystee's post for the background. It's from 2007, and IIRC there was a good deal of discussion about it over the next few months.

No, the question -- at least, my question -- is not whether the filibuster cost us this or that. The question is whether the opportunity costs of focusing on meta-process issues like abolishing the filibuster is too great. (This is in response to both of your comments immediately above). Although in shorthand, as befits a comment, I'm arguing that it is. And that there are (classes of) actor(s) in the political process who would be only too glad to see us waste our time.

NOTE * Regarding labelling: If this a concern, I'd argue that it's literally not possible to have a functioning discourse without shorthand. We as humans can't recapitulate, in miniature, every discussion that led to the choice of a talking point when we use the point (although with tools like the glossary, we can try). And in the nature of the case, the shorthand, being a selection and a sharpening, is tendentious. "Name it and claim it." One hopes that's not the same as bullshit; I hope it isn't.

UPDATE With this, I'm checking out. I ought to be on vacation.

letsgetitdone's picture
Submitted by letsgetitdone on

I understand the point, and think it's a reasonable one, but I don't think it's correct. I think that the cumulative damage done by the filibuster over the years is so great, that it is worth trying to get rid of.

Shystee's post doesn't speak to that point. It doesn't compare the consequences of going after the filibuster with not going after it. It suggests that we shouldn't go after the filibuster because going after it is an example of "the process dodge," and therefore must be a bad idea. I think that line of reasoning is ad hominem, in the sense that it objects to a proposal based on how it's labeled or classified, i.e. based on what it is, rather than on the consequences it may have.

Sorry, I couldn't reply earlier today. Just a little RL.

Submitted by lambert on

... and getting tangled up in a gigantic ball of yarn with no likely good outcome is, precisely, a consequence, two. That's a metaphor, which is not the same as a label, three.

I argue that focusing on these process issues is exactly the kind of Inside Baseball that's been so destructive at Kos and the other access blogs, where you've got amateurs doing whip counts and -- shock! -- being run rings around by the pros.

I think the whole idea is a distraction, and I'd like to know its provenance. Who started pushing it, why, and why now?

And remind me again why we want to give Democrats more power?

Entitlement reform?

Iran?

There are plenty of reasons why gridlock isn't the worst of all outcomes.

DavidByron's picture
Submitted by DavidByron on

The reasons for the filibuster are broadly the same reasons for having a senate in the first place and the rule tends to add to the power of the senate over the house. The reason for the senate in the first place was to put a sharp break on democratic impulses of the people. A good example would be what just happened with health care "reform".

This goes back to the populist capture of the house of representatives of Rhode Island around the time they were writing the constitution. That display of populist democracy and Shays' rebellion prompted the need for a federal constitution to screw the people under foot properly. What happened in Rhode Island was that the aristocratic senate was able to block much of what the populist house was trying to do until other means (as in "politics by other means") eliminated the populist threat.

This piece of history is also why Rhode Island alone had no representatives at the constitutional convention.

When they say "checks and balances" what they meant was "check populist take overs". That's the purpose of the senate so rather than remove the filibuster your goal ought to be removal of the senate. Now it becomes clear why senators would be reluctant to vote for that. Nevertheless the House of Lords, which the senate is modeled on, has voted against itself a few times, to decrease its power so it cannot block legislation created in the lower chamber.

I would say that you'd need to start by having a continuing campaign against the senate itself stressing its anti-democratic nature, educating people as to its anti-democratic purpose, reminding folks that the senate and filibuster has been successfully altered before several times to make it more democratic but has a long way to go.

letsgetitdone's picture
Submitted by letsgetitdone on

Maybe, if one went after the Senate entirely, one could get the Senate to get rid of the filibuster, and make itself more Democratic. However, it's a lot easier to get rid of the filibuster than it is to get rid of the Senate.

DCblogger's picture
Submitted by DCblogger on

Obama says he plans to do a jobs bill, and it is even possible that he means it this time. I think it is beginning to dawn on the Dems that it we don't have jobs they won't have jobs. If the GOP controls both chambers the Tauzin retirement plan will not be available to them. So I think they might just abolish the filibuster in order to pass a real jobs bill.