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On the Indefensibility of the Filibuster

[ 6 ] February 16, 2009 |

With the discussion here and elsewhere in the blogosphere about the filibuster, I thought it was worth trying to get to the core of the issues. It is true, as djw and I have argued in detail, that the mere fact that the filibuster is “counter-majoritarian” does not make it a bad thing. But it’s also true that it’s not enough to point out that the American system has other counter-majoritarian features: each one requires its own justification. And when you think of things that way, it’s pretty obvious that the filibuster is indefensible. Let’s consider the key issues:

  • It should be clear, first of all, that adding additional veto points to the American system should require an especially high burden of proof. The result of the unusually high number of veto points compared to other liberal democracies has been worse policy outcomes with no discernible gain in human rights. Many of these veto points are constitutionally entrenched. But for those that aren’t — the such filibuster — we have to ask whether the clear costs of an additional veto point carry any additional benefits. (And while I could care less about the intent of the framers on this question, Matt is also right that there’s no reason to believe that there was any intention for the Senate to have a supermajority requirement.)
  • It’s not enough to say that the filibuster protects “minorities.” The relevant question is whether the institution can be expected to protect underrepresented and disadvantaged “minorities” in the Carloene Products sense. “Counter-majoritarian” institutional features are defensible to the extent that they do that. And the problem with the filibuster, then, is that given the structure of the Senate the only minority reliably protected by the filibuster is rural conservatives: an already absurdly over-represented minority. And, of course, it’s worse than that: the primary effect of the filibuster historically has been to prevent legislative majorities from protecting discrete and insular minorities by thwarting various types of civil rights legislation. And it sure wasn’t affluent people who got hurt by the cuts urged by the Senate “centrists” using their filibuster leverage to water down the superior House legislation.
  • And what’s remarkable to me is that apologists for the filibuster not only don’t dispute this trend, they literally can’t cite a single example of the filibuster working to good ends. Hilzoy — who isn’t an apologist — gamely tries, saying that “To anyone who thinks it’s just obvious that the filibuster should be eliminated, I have three words for you: Janice Rogers Brown.” Well, with the filibuster, Janice Rogers Brown is on the D.C. Circuit, just as she would be without it, so I’m not sure what the argument is. We saved two years? (Indeed, it was foolish not to force the Republicans to permanently discredit the filibuster to get what they were going to get anyway.) But even if we want to change the example to Miguel Estrada, isolated examples can hardly provide much on an argument against overwhelming historical trend.
  • And there are additional good reasons why the filibuster overwhelmingly serves reactionary interests. At the federal level, progressives generally want the government to do more, not less; the filibuster veto point, then, provides asymmetrical opportunities for entrenched privilege against those that would change the status quo. Moreover, once established, major liberal programs are very difficult to get rid off; we didn’t need the filibuster to protect Social Security in 2004. And in terms of protecting civil liberties, spotty as its record is judicial review can point to many examples of value, while as far as I can tell the filibuster can’t point to any.

So, basically, there’s nothing good to be said about the filibuster as it has historically been used. Defenses of the filibuster from a progressive point of view essentially require entering a land of fantasia where the relentlessly reactionary nature of the filibuster across various changes in legislative leadership and party coalitions is purely a coincidence, that progressives haven’t been able to use it not because of institutional realities but because people like LBJ just don’t grasp the finer points of legislative technique. This is, to put it mildly, implausible. The filibuster doesn’t protect underrepresented minorities in theory and hasn’t protected them in practice, and it would be best if it were abandoned at the first opportunity. Whether this will happen too late for decent health care reform to be passed, we’ll see.

UPDATE: A response to Publius’s point about the judicial filibuster can be found here.