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The Filibuster Revisited

Last week I wrote about the factually inaccurate assumption underlying Chris Bowers questioning of Dem opposition to the GOP's 2005 Nuclear Option.

My first point was that Bowers was just wrong on his facts. And now no one, not even Chris himself, disputes that.

The second point argued is that the filibuster is more harmful to progressive policy than to "conservative" policy. See Scott Lemieux and Kevin Drum. I think that is largely wrong. For the past 30 years, the essential progressive fight has been the preservation of progressive policy achievement. The filibuster has been very useful in this fight. But I think there is a larger point being missed (that actually cuts both ways in this discussion.) Kevin Drum writes:

[C]onservative legislation, on average, tends to be easier to overturn than liberal legislation. Taxes, for example, go up and down all the time, and conservative tax cuts could be washed away easily by liberals if the filibuster didn't exist. But liberal programs tend to be more permanent. Once they get entrenched, even conservatives are loath to eliminate them. For all the big talk about Social Security in 2005, it wasn't the filibuster that kept George Bush from passing his privatization plan. In the end, he couldn't even get majority support for it.

(Emphasis supplied.) Taxes go up all the time? Really? When is the last time taxes went up? Repeat after me - the 1993 Omnibus Budget Reconciliation Act.

And for those who do not remember - the bill passed by a single vote in the House and Al Gore had to cast a tiebreaking vote in the Senate.

I am always amazed at how little importance progressives seem to give tax and spending policies. For example, the Bush II Administration spent 8 years trying to cut spending on programs Democrats hold dear. The main reason he could not cut? Why the filibuster of course.

There is a lot of shortsighted analysis that states elimination of the filibuster is "good for progressives." It would be good if progressives control the Presidency and the Congress. If the Republicans do, it clearly would not be good.

As for how groundbreaking progressive policy could be on issues such as health care reform - well, we had a pretty good picture of that last winter after Scott Brown won in Massachusetts and reconciliation became a necessity for the Obama Administration - to wit, it made little difference.

In short, I remain unconvinced that elimination of the filibuster would be a boon to progressives (though it surely would be to democracy.) In short, to paraphrase Scott Lemieux, "the fact that the filibuster made public policy marginally [worse] when the Democrats had control of the government (and only very marginally)" is hardly an argument for progressive benefit to ending the filibuster.

Indeed, the more principled and supportable argument is that eliminating the filibuster is good for small-d democracy. (So would eliminating the Senate altogether, but the Constitution forbids that.) I wonder why some folks feel the need to stray from this stronger point.

Speaking for me only

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  • Display: Sort:
    The filibuster is keeping me from (5.00 / 2) (#11)
    by Militarytracy on Tue Aug 03, 2010 at 11:45:11 AM EST
    having the President I thought I was getting, or so I'm told.

    It strikes me that (none / 0) (#17)
    by gyrfalcon on Tue Aug 03, 2010 at 02:00:54 PM EST
    the D.C. crowd is very, very lucky your life didn't take a different turn and make you a professional pundit with your own primetime TV show.

    Parent
    One show I would definitely (5.00 / 1) (#18)
    by Anne on Tue Aug 03, 2010 at 02:09:26 PM EST
    watch would be Tracy in primetime kicking a$$ and taking names...

    Parent
    The "get rid of the filibuster" (5.00 / 2) (#14)
    by lilburro on Tue Aug 03, 2010 at 12:10:47 PM EST
    movement is rather bleh to me.  I think its clearly being generated by the need of some to make Obama powerless.  I realize the filibuster is an obstacle but it's also a political opportunity.  Let the Republicans filibuster a jobs bill or any progressive legislation on the economy.  Shades of this.

    But NO.  That can't be done, for some reason.

    In complete agreement with your whole take (none / 0) (#15)
    by Militarytracy on Tue Aug 03, 2010 at 12:25:19 PM EST
    No matter how one looks at it, the (5.00 / 3) (#16)
    by Anne on Tue Aug 03, 2010 at 01:59:10 PM EST
    filibuster is a knife that cuts both ways; the question, I suppose, is what cuts deeper - keeping it or getting rid of it?

    And how beneficial is it to keep just for the excuse factor?

    What are the chances that Democrats would capitalize on the opportunities getting rid of it would present, any more than they have capitalized on being in the majority since the start of the 2007 Congress?

    I'm thinking, slim to none.  And not because I think the Dems are that inept and incompetent - even if there are elements of that - but because I'm not convinced they really hate the filibuster as much as the noise being generated about it would indicate.  

    I think that even if you stripped away the worst of the procedural stumbling blocks, you'd still be left with a Senate more inclined to do the business of business than the business of the people.

    Publicly-financed elections might be the one way to change that dynamic, and that isn't happening anytime soon; until it does, whether there is or isn't a filibuster isn't likely to be of any great benefit to us.

    I have been fighting for two years (none / 0) (#1)
    by andgarden on Tue Aug 03, 2010 at 11:15:21 AM EST
    to eliminate the Senate. I have not gotten much support. . .

    You have my support (5.00 / 2) (#13)
    by Maryb2004 on Tue Aug 03, 2010 at 12:04:11 PM EST
    You have to adopt a new constitution (none / 0) (#2)
    by Big Tent Democrat on Tue Aug 03, 2010 at 11:17:44 AM EST
    for that. Article V does not allow tinkering with the Senate.

    Parent
    Two ways of addressing that (none / 0) (#3)
    by andgarden on Tue Aug 03, 2010 at 11:22:31 AM EST
    First, you could just have zero Senators. That would be "equal representation" for the states. Second, you could amend Article V. You're only right for sure if you think that Article V can't be amended.

    Parent
    Well (none / 0) (#5)
    by Big Tent Democrat on Tue Aug 03, 2010 at 11:23:58 AM EST
    If you can get someone to go along with that interpretation, great.

    Parent
    If we get to the point (none / 0) (#7)
    by andgarden on Tue Aug 03, 2010 at 11:25:52 AM EST
    where it's politically possible, that viewpoint will be adopted.

    Successfully make the case for eliminating the Senate, and everything else will fall into place.

    Britain eventually had two Parliament Acts, after all. And the king participated in making the House of Lords impotent.

    Parent

    Making it impotent seems the better way (none / 0) (#9)
    by Big Tent Democrat on Tue Aug 03, 2010 at 11:31:20 AM EST
    procedurally. To wit, you can amend Article 1.

    That's the way to go.

    Parent

    The President could be helpful (none / 0) (#10)
    by andgarden on Tue Aug 03, 2010 at 11:40:17 AM EST
    with this, but he isn't.

    Parent
    Maybe not (none / 0) (#6)
    by jbindc on Tue Aug 03, 2010 at 11:25:47 AM EST
    The text of the 17th amendment starts out:

    The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

    When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

    This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

    I don't see how you get around that text in the first clause.

    Parent

    You're right (5.00 / 1) (#8)
    by andgarden on Tue Aug 03, 2010 at 11:27:28 AM EST
    So it's on to option two!

    Parent
    You would be right (none / 0) (#4)
    by jbindc on Tue Aug 03, 2010 at 11:23:43 AM EST
    The second point argued is that the filibuster is more harmful to progressive policy than to "conservative" policy. See Scott Lemieux and Kevin Drum. I think that is largely wrong. For the past 30 years, the essential progressive fight has been the preservation of progressive policy achievement. The filibuster has been very useful in this fight.

    At least, according to Ben Eidelstein (whether he is an expert or not, I do not know, but the analysis is interesting).  From February of this year, Eidelstein writes (my emphasis in bold):

    Because one of the most entrenched assumptions about the filibuster--that it thwarts majority rule--is only half-true. When you crunch the numbers, it turns out that the filibuster has often served to enforce majority rule in recent years, not to undermine it. Instead of abolishing the filibuster, we should try to curb its undemocratic excesses while preserving its role as a democratic check.

    SNIP

    To do this, I downloaded records of all Senate votes on cloture motions--used to limit debate--from 1991 to 2008. For each of the 152 votes where a filibuster successfully thwarted a Senate majority, I tallied the populations represented by the senators who supported the filibuster. (A more technical explanation--including some significant details I've glossed over--is available here.)

    What do these calculations reveal? First, over the past two decades or so, the senators who successfully filibustered something represented about 46 percent of Americans on average. Yes, that is a minority--but it is a far cry from the nightmare scenarios sometimes deployed by opponents of the filibuster, who worry that as little as 11 percent or 12 percent of the country could obstruct popular legislation. Since 1991, in fact, there have been only four filibusters--0.03 percent of the total--that thwarted senators representing more than 65 percent of the American people.

    What's most striking, though, are the many cases in which the filibustering Senate minority has actually represented a majority of Americans. In fact, in 40 percent of the filibusters since 1991, the senators making up the "obstructionist" minority represented more people than the majority they defeated.
    The traditional debate over the filibuster--which equates filibustering with a minority veto, and then argues the merits of giving the minority such a prerogative--entirely misses this fact. Democratic filibusters against President Bush's judicial nominees were decried as undemocratic usurpations, for example. But nearly all of them fell into this category of "majority rule filibusters."

    This example is typical of a more general partisan pattern. When Republicans have been in the majority, the filibustering minority has actually represented the majority of Americans 64 percent of the time. When Democrats have been in the majority, that figure plummets to 3 percent. So the charge that it is somehow hypocritical for Democrats to decry Republican filibusters as affronts to majority rule--if they also stand by their past decisions to filibuster the Republicans--is easily answered. When Democrats have filibustered Republicans in recent years, they have very often represented more Americans than the Republican majority; the same is almost never true in reverse.

    All of this suggests that reformers should not be too quick to reject the filibuster outright as an impediment to democracy. During recent periods of Republican control, the filibuster has served as a democratic backstop that counteracts the structural inequality of the Senate--often empowering a majority of Americans, acting through their senators, to veto extremist bills or nominees.



    Even if the Democrats maintain a small (none / 0) (#12)
    by MO Blue on Tue Aug 03, 2010 at 12:03:37 PM EST
    majority in the Senate in 2011, it will be a very conservative body. Eliminating the filibuster, would provide the Republicans a 50 vote majority on most issues.