That Woman Knows How To Filibuster

Julie Saltman (1,2) and the Mock Turtle offer progressive defenses for keeping the filibuster rules. Since they raise a lot of interesting points, I’ll address the most important ones individually. Again, I should make clear that this is not a defense of the “nuclear option”; I don’t support ending the filibuster only for judicial nominees, and I particularly don’t support doing so by breaking the rules. (Similarly, I’m only a supporter of ending the filibuster for ordinary legislation; the MT is certainly right that it’s ridiculous that the standard for the Quebec secession referendum was 50%+1, and this very nearly produced a massive political crisis. I could be convinced that judicial appointments warrant a supermajority as well.)

It is consistent with the system the framers designed. Julie notes that “I’d argue that the whole point of the system Madison envisioned and realized in the Constitution is to seriously slow things down.” This is certainly correct. My response would simply be that Madison was, in this case, wrong. Obviously, any democratic political system makes tradeoffs between efficiency and protecting minority rights. But I think the Madisonian system goes too far in the latter direction. It’s simply too easy for powerful minorities to oppose social change; the last thing this system needs is more veto points. More on this later.

It encourages deliberative democracy. Julie sez: “A filibuster extends the debate phase of bill passage, and as a dramatic gesture, also highlights the issue for the news media who might not notice it otherwise.” The argument about media and agenda setting is interesting; that is one potential benefit. In terms of extending debate, though, it’s worth remembering that most filibusters aren’t Jimmy Stewart-type extended deliberations, but just votes on cloture bills. Nor is the content of rare filibuster debates necessarily very edifying; Strom Thurmond reading the D.C. phone book into the Congressional Record probably didn’t do much to advance public understanding. And even in cases where debate is relatively substantive, as with the actual debate about the judicial filibusters last year, I don’t think there’s much evidence that it affects public or elite discourse much.

Be careful about making political judgments. Julie: “I don’t agree with Yglesias, who wants to eliminate the filibuster altogether, because I don’t think we should abandon something that is theoretically good for the system because it has had bad results for our party in the recent past, especially since we don’t know how long this winter’s going to last. We may be in the minority for many years to come. In fact, I don’t think we’ll come close to regaining our majority until at least 2008, and that’s being optimistic.” I think this is right–there’s no question that eliminating the filibuster is not in the short-term interests of the Democratic Party or progressive politics. But this is, in some measure, inevitable: it will only be possible to get rid of the filibuster when it’s in the short-term interests of the Republican Party. For the reasons many people have already explained, however, I remain convinced that this would be a sucker bet for the GOP. In general, progressives want to do things that appeal to public interests that can be diffuse and hard to mobilize, while reactionaries and conservatives don’t. Over the long term, as history demonstrates, filibusters much more often than not work against progressive interests. It is true that there are some civil liberties issues on which most progressives (certainly including me) are more skeptical about state power. However–and about this Madison was certainly prescient–in terms of abuses of civil liberties state governments tend to be much worse that the federal government, and judicial review will nullify at least some of the exceptions. (Moreover, during the times or wartime panic where the feds are likely to engage in such abuses, the filibuster generally hasn’t proved very effective. The Patriot Act is the most obvious example of this; the filibuster wouldn’t help much unless Russ Feingold had superhuman bladder control.)

Sober Second Thought. In a variation on point 2, the blogger formerly known as Mok argues: “We are going to be here a long time. There is plenty of time to get things right. Law should be made in a serious and considered fashion. The filibuster is one mechanism that prevents the kind of rash legislative acts that will, without doubt, get us in trouble if we let them.” This is perhaps the most powerful argument not only for the filibuster but for bicameralism and other aspects of the separation of powers in general.

My response to this point is generally to look at things comparatively. For the most part, the arguments made by Julie and MT tend to be abstract and formalistic. This isn’t, of course, a criticism; evaluations of constitutionalism should begin with careful theoretical considerations, as well as an attempt to determine what ends we value. But, for me, ultimately the proof of the pudding is in the eating. It seems to me that the American system is plagued far more by the inability of the federal government to react and experiment with policy solutions to social problems than by the risk of passing unwise legislation. The Madisonian system already has a large number of veto points; the last thing we need is to create more. (It’s true that the filibuster is not the most important of these–I certainly think that the gross malapportionment of the Senate has been far worse for American political development. But it is one of the few we can actually get rid of without a constitutional amendment.) The way I would look at it is this: comparable liberal democratic systems with fewer veto points, such as the UK and Canada, have much better policy outcomes (health care being the most striking example) without any noticeable sacrifice of minority rights. For progressives, I think, the evidence makes it clear that the costs of the filibuster will always outweigh the benefits in the long run. But, of course, it all depends on how one makes a variety of theoretical tradeoffs.