No, Really, the Filibuster is Terrible

I spent some time reading terrible arguments — in good faith or otherwise — that Democrats will regret using the nuclear option. I explain why all the forms of this argument are transparently wrong. Of these, the strangest is liberal sentimentalism about the filibuster:

Some liberal writers whose work I respect enormously have an attachment to the idea of the filibuster that I find frankly unfathomable. For example, the eminent legal scholar Geoffrey Stone argues that the nuclear option is “a sad day for America.” But like most such arguments, his defense of the filibuster exists entirely in the abstract, with no attempt to grapple with the actual effect of the filibuster on American politics. In what is always a bad sign, Stone begins by invoking the Frank Capra film Mr. Smith Goes to Washington, which makes about as much sense as invoking Henry V to argue that monarchy is preferable to democracy. More unfortunate is that Stone does not depart the realm of the Hollywood tear-jearker to consider how the filibuster has been used by the actually existing United States Senate. Stone does not identify any example of the filibuster being used to protect an oppressed minority, presumably because as far as I can tell there aren’t any. Nor does he deal with the frequent use of the filibuster to obstruct federal civil rights legislation, a much more representative use of the filibuster than Jimmy Stewart’s stand for the little guy.

The depiction of the filibuster in Mr. Smith Goes To Washington is a nearly precise inversion of how the filibuster actually works. Far from protecting the interests of powerless minorities, the filibuster in practice is far more likely to allow powerful, overrepresented minorities like segregationist and business interests to thwart legislation intended to protect oppressed minorities. The Republican blockade of Obama’s judicial and executive nominees is very much consistent with this tradition, which is why the use of the nuclear option was a clear victory for progressives.

Another example of an excellent writer with an attachment to the filibuster I find inexplicable is Johnathan Bernstein, whose defense of the practice I missed until after my article went to the editors. One of his points — “Have you actually looked at the House of Representatives lately? Do we really need a second body organized that way?” I address directly in the article. The problems with this argument are that 1)the Senate looking more functional is a historical anomaly, and 2)House dysfunction is not caused by its majoritarian structure. Indeed, if Tea Party House Republicans had an effective veto like they would in the Senate it’s not clear that the planet Earth would exist anymore. Certainly, there would be not only no debt limit extension but no ACA, no repeal of DADT, and no stimulus, among many other things.

On his larger argument, I’m not sure Wendy Davis is any more relevant to the routinized filibuster of the United State Senate than a Frank Capra film is. Reducing the filibuster to a 55-vote threshold wouldn’t reserve the filibuster for unusual, lonely and ultimately futile stands against bad legislation; it would just be a de facto 55-vote supermajority requirement that would have no good reason for existing. And, really, the fact that defenders of the filibuster are unable to come up with the filibuster serving a useful purpose in the Senate itself and have to rely on hypotheticals, other legislative bodies, or Hollywood movies makes my case for me.

I should say that Bernstein does have a good explanation for why the Republicans may have pushed too far — the few remaining moderates were being hung out to dry. I would add that the Cruz faction seems to care more about posturing than actual policy substance, so the counterproductive results from their perspective may not matter too much to them.