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Marshall on the Filibuster


Via LP, Josh Marshall’s argument on why Senate Dems need to protect the filibuster is just a touch underspecified:

It is just bad practice — especially in the face of the last eight years — for numerical majorities not only to use the power of their numbers in straight up votes but to change the rules of the game itself. Notwithstanding the fact that filibuster has been increasingly abused, it was wrong in 2005 and it would be wrong now.

Ok… first, the filibuster isn’t one of the “rules of the game” that we have specified as requiring a super-majority to change. We refer to those rules as “constitutional”; they can be changed through amendments, and the process by which they are changed is laid out carefully in the Constitution itself. Marshall seems to be suggesting that the filibuster occupies a special class of rule that requires a super-majority to change, even though the actual, evident rules of the Senate don’t specify that such is required, or that the super-majority needs to be of a specific size, or really anything else about how that rule can be changed. I’m curious about what other rules Marshall believes require super-majorities to change, and what process he sees as necessary for that change. Beyond tradition, I’m not at all convinced of the utility of a rule that requires a legislative super-majority to enact everyday legislation in a body that is already ridiculously counter-majoritarian.

Now, I take more seriously than most (and probably more seriously than I should) the idea that tradition should have positive weight when considering changes in institutions. The filibuster as it stands now, however, bears little resemblance to the creature that existed forty years ago; it has not, after all, been traditionally understood that a 60% majority in the Senate is necessary for the passage of legislation. Moreover, the Republicans seem to understand this, and successfully bludgeoned the Senate Dems into submission with threats to remove the filibuster three years ago. So until Marshall comes up with a more compelling case for the need to protect the filibuster, count me unconvinced.

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