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That Which Cannot Be Undone

I'm going to take another crack at this filibuster debate. The basic viewpoint put forward first by Nathan Newman on his laborblog, supported by Yglesias and his co-workers, several commentors here (notably "Petey"), and now joined in part by Rick Hertzberg in the New Yorker (a lot of firepower to fend off with my little blog) has been that Democrats/liberals should be eager to get rid of the filibuster because liberalism depends on active government and the filibuster is a way to delay and derail action. All agree that ending the filibuster solely for judicial nominations is a bad idea, but all would welcome a deal by which it could be ended for legislation as well.

My argument in response has been that it's tricky to predict the substantive results of any purely procedural change, because a change can have very different results depending on other circumstances, and that allowing a committed, passionate minority . Without totally discarding that argument, I want to take a second bite at this apple (a phrase that John Bolton just put into my head), and put the argument in another way. In thinking about my own single experience with a filibuster (which I'll discuss below), it occurred to me that while anything that favors delay over action may favor conservatism over liberalism, the current right-wing agenda is really all about trying to foreclose the possibility of future action, or to create actions that cannot be undone.

Liberal actions are rarely permanent, with the great entitlement programs being the major exceptions. Mostly our agenda depends on regulatory regimes like the Clean Air Act that appropriately are reviewed and reauthorized every few years, or spending programs like HeadStart that require not only reauthorization but annual appropriations. (Jonathan Chait has elevated this sense of continual reconsideration into the heart of liberalism itself, in which I think he is correct.) On the other hand, much of the right-wing agenda (which does not deserve to be called conservative) consists of initiatives that have significant long-term consequences and for either practical or political reasons cannot be undone by a future majority. If the Arctic National Wildlife Refuge is opened for oil drilling, it will never be unopened. If a majority of the Supreme Court and circuit courts represent the "Constitution in Exile" extreme, and are under 50, that will not be undone for at least a generation. If the estate tax is permanently ended, it might require decades of struggle to bring it or an alternative back. If Bush's favored form of tax cut -- not rate reductions, but the exclusion of certain forms of investment income from taxation altogether, such as through uncapped tax-free savings accounts -- pass, those income streams will be lost to revenues forever.

This is really the most plausible "principled" point in favor of the filibuster: that it should always be difficult for a majority, which might be a temporary majority, to bind future majorities. That's why we have such a high barrier to constitutional amendments. But there are other legislative choices that can have the same effect as constitutional amendments, because of their permanence and the way they constrain future choices. Filibustering a judicial appointment, a permanent tax cut, or a significant environmental deregulation, or for example, the deregulation of media ownership, would be highly justifiable filibuster targets, in the name of future voters who might have a different view. That's more justifiable than filibustering an appropriations bill, which is just this year's majority's decision about this year's spending. I don't think there's a rule that could precisely reflect this, but if I were a Senator, I think that I would try to set a standard by which I would join a filibuster/oppose cloture principally on things which cannot be reversed, or which can be reversed only with great difficulty, rather than the decisions by today's majority that can easily be reconsidered by a majority in the near future.

On balance, it's hard to really score this, but I think that right now at least, the radical right has a rich agenda of things-that-cannot-be-undone, on the environmental, legal, and economic fronts, and we have much to gain by being able to stop them. At the same time, I think liberalism has less to lose from a structure that might slow down action, but doesn't prevent it permanently.

Nathan Newman pointed out in response to my first post in this sequence, that while all the tax cuts had been passed under the filibuster-proof reconciliation process, the 2001 tax package had passed with more than 60 votes and thus the filibuster wouldn't have helped anyway. True, and a good point, although it would have given the Democrats a little more negotiating power. More to the point, though, if it weren't for the Byrd Rule, which is kind of the exception to the exception, the Bush tax cuts would have been made permanent right from the start. In other words, if there had been no filibuster possibility at all, the estate tax would be gone, and all the other changes would be permanent.

I was going to make this comment a preface to a brief account of my own experience with a filibuster, but I think I'll split that off into a separate post.

Posted by Mark Schmitt on April 11, 2005 | Permalink

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Comments

The apple is tastier with the second bite.

Mostly our agenda depends on regulatory regimes like the Clean Air Act that appropriately are reviewed and reauthorized every few years, or spending programs like HeadStart that require not only reauthorization but annual appropriations. (Jonathan Chait has elevated this sense of continual reconsideration into the heart of liberalism itself, in which I think he is correct.)

Yup. This is certainly the core argument for why we'd be better off without the filibuster. If liberalism does require continual reconsideration, a paralyzed federal government is not in our long-term interests.

If the Arctic National Wildlife Refuge is opened for oil drilling, it will never be unopened. If a majority of the Supreme Court and circuit courts represent the "Constitution in Exile" extreme, and are under 50, that will not be undone for at least a generation. If the estate tax is permanently ended, it might require decades of struggle to bring it or an alternative back.

Sure. But there are liberal policies with the same semi-permanent results. If universal health care is enacted, it'd be impossible to repeal. If higher CAFE standards are imposed and Detroit has to retool its automotive line, they will be hard to repeal. Democrats went along with NCLB due to this type of thinking.

The current right-wing agenda is really all about trying to foreclose the possibility of future action, or to create actions that cannot be undone.

Of course, the GOP is going to try to do that even with the filibuster in place. Through the reconciliation process, creating a fiscal ruins will hamstring liberal governments in the future. And there are plenty of Supreme Court candidates who will be radically conservative without having the kind of paper trail needed to cause a confirmation fuss.

(On judges in general, it's worth noting that the administration likes a certain number of judges that bait the Democrats to satisfy their base. The baiting is not a necessary element in the drive to remake the courts - they can do that with judges who'll get 80 Senate votes.)

On balance, it's hard to really score this, but I think that right now at least, the radical right has a rich agenda of things-that-cannot-be-undone, on the environmental, legal, and economic fronts, and we have much to gain by being able to stop them.

Is this really a function of the right's agenda, or is it just a function of the fact that the right is currently in power for the first time since before any of us were born?

-----

There are obviously significant short-term risks in abolishing the filibuster, and they should not be dismissed lightly. But those short-term risks are the only reason the opportunity may be available.

At the end of the day, liberalism demands an activist government. And an activist government demands a government that works and can respond to the will of the people. Perhaps the unwillingness of the American electorate to support European levels of taxation has something to do with the normal level of structural paralysis and dysfunction in Washington.

Even with the filibuster gone, it will still be considerably harder to pass legislation in Washington than it is in most other industrialized democracies. But perhaps we will be able to do better than the current standard of a brief flurry of legislation every 30 or 40 years.

Posted by: Petey | Apr 11, 2005 7:53:06 PM

Simply, just right on, Mark

Posted by: Debra | Apr 11, 2005 9:51:05 PM

I'm with you. It's obvious that the US is being governed by a fascist party who will stop at nothing to consolidate power. With voting reform still and possibly forever stalled, there's a strong chance that the Bushies' takeover will be complete enough so that, like Hitler's Germany, it will take a major coordination of a good deal of the rest of the planet to bring it down; in which case, who can guess at what sort of "government" will succeed our current one, or even what kind of world it will bring about for that matter. Better to fight these immoral powermongers, point-by-point, battle by battle, right now.

Posted by: Kit | Apr 11, 2005 9:56:15 PM

Mark:
Aside from all of your excellent arguments dealing with why the Senate, and progressives in particular, need the filibuster, one other argument seals the deal for me. The House has become increasingly undemocratic and restrictive and needs a counterweight in the form of the filibuster. Only a strong push back by Democrats can save us from an increasingly repressive agenda. According to a massive recent report by Cong. Louis Slaughter's minority staff on the House Rules Committee, titled "Broken Promises: The Death of Deliberate Democracy," the Republicans on the Rules Committee, which sets the terms of debate in the House, have: prevented Members from offering amendments to important bills through increasingly restrictive rules; devoted most of floor time to non-controversial measures leaving less time for controversial ones; used unnecessary late night "emergency" procedures to "discourage Members and press from participating"; and, granted "blanket waivers" from the 3 day consideration period for conference reports, preventing members from reading them in advance of floor votes. Filibusters are the only thing progressives have left. Why give them up?

Posted by: ruth fleischer | Apr 11, 2005 9:57:03 PM

This is not really my field, but I heard a constitutional lawyer say something once that kind of stuck with me and I think it applies here; "Write the law as if your worst enemy was going to use it".

Posted by: Carlos | Apr 12, 2005 12:13:22 AM

Lets not forget also that the ball is not in our court -- if the filibuster is going to be scrapped, it's the GOP that's going to do it. Right now, they're threatening us with "the nuclear option" in an attempt to frighten Democratic lawmakers from exercising the filibuster on a regular basis. What kind of check an balance is it if your opponent have to OK its use?

Maybe, on balance, there are prudent reasons to preserve the filibuster as an insurance. Yet I would say the downside of losing the filibuster is not big enough to warrent us losing much sleep. Certainly not big enough to let Tom Delay use it as a weapon.

Posted by: battlepanda | Apr 12, 2005 1:05:41 AM

Mark, I think you hit it firmly on the head. I can think of some times when the Republicans should have filibustered when the Democrats were in power (LBJ comes to mind), and I can think of many times the other way. The filibuster doesn't cause paralysis; it causes moderation. And I'm all for that.

Posted by: mac | Apr 12, 2005 2:00:27 AM

Um, battlepanda--Tom DeLay can't use the filibuster; they don't have it in the House, only in the Senate.

Posted by: DHinMI | Apr 12, 2005 3:01:18 AM

A DHinMI, do you not know little grasshopper that Tom Delay controls all the levers of power? For instance, he has everybody's favorite straight talking maverick John McCain promising not to investigate him or other members of congress, only those crazy "renegade" lobbyists that gave him so muc money and flew him so many places. Yes, I'm afraid that even if Tom doesn't get to use the filibuster himself, his dark arts allow him to control those who do.

Posted by: cvcobb01 | Apr 12, 2005 3:11:09 AM

Liberal actions are rarely permanent, with the great entitlement programs being the major exceptions. Mostly our agenda depends on regulatory regimes like the Clean Air Act that appropriately are reviewed and reauthorized every few years, or spending programs like HeadStart that require not only reauthorization but annual appropriations.

Those are some pretty big exceptions to leave off the table and I'm not so sure "Regulatory Regimes" (I like that term for them) are any less permanent despite their review every few years as they are easily demagogued ("The Fascist Republicans want your children to be illiterate and drink poisoned water").

Read Kit's post to get my point. It was so cliche I thought it was parody. Fascist? Please.

Posted by: Lloyd | Apr 12, 2005 5:54:16 AM

I tend to favor requiring a 60-vote supermajority for confirmation of lifetime judicial appointments as a precaution against allowing a temporary majority to impose its will permanently on the future. On the question of filibusters for legislation, I'm still undecided. There's a legitimate argument for delay and/or broad consensus regarding legislation with long-term consequences, but when does "delay" become permanent in its own right? My guess is - not very often, which if true would argue in support of retaining the filibuster. Here's a question I ask non-rhetorically (i.e., I don't know the answer): how often has highly desirable legislation been blocked by filibuster for an inordinately long time (e.g., decades) when it would have been passed by a simple majority? Perhaps civil rights legislation in the distant past might qualify, but have there been examples since then? Even with civil rights, filibusters lost their power when the nation, aided by a Southern president (Lyndon Johnson), came gradually to recognize the need to rectify an egregious injustice.

(Mark - P.S., I've also added a comment to your March 1 post on the Social Security payroll tax).

Posted by: Fred Moolten | Apr 12, 2005 2:30:25 PM

Hey Lloyd, you seem to believe that fascism is an alarmist term. It isn't. Do me a favor and read Mussolini's own definition of fascism, for instance. Then go ahead and try to refute my commentary by demonstrating how Bushco does not fit into fascism's paradigm. Don't jump to Buchenwald immediately: you'll have to discuss the time-line delineating the rise of European fascism as a series of gradual arrogations of power until it was consolidated and unstoppable internally.

Is it possible to address my points individually, as opposed to posting dismissive and specious non-refutations? Beyond the incessant lip-service Bush gives to it, can you demonstrate any occasion where Bushco allowed for the sharing of political power in any close proportion to the actual voting percentage he received? What kind of impetus toward making the voting process more verifiable have the Repubs done? What is moral about the war they have brought to Iraq unbidden, killing hundreds of thousands of Iraqis in the process? These are real concerns, not cliches. And they must be addressed now.

Posted by: Kit | Apr 12, 2005 2:56:31 PM

"Here's a question I ask non-rhetorically (i.e., I don't know the answer): how often has highly desirable legislation been blocked by filibuster for an inordinately long time (e.g., decades) when it would have been passed by a simple majority? Perhaps civil rights legislation in the distant past might qualify, but have there been examples since then?"

Three examples for you since civil rights days:

The last time the Democrats ran the government, Clinton's universal health care package would likely have passed without the 60 vote requirement (although it would've been close). And multiple other things like the BTU tax and infrastructure spending would have been possible.

Various incarnations of campaign finance reform have been stopped over the past couple of decades by the 60 vote requirement.

In the early 70's, an very popular effort to abolish the electoral college failed only due to the 60 vote requirement.

There are many other examples, especially during the '77 - '81 and '93 - '95 periods. And moreover, during both the Carter and Clinton administrations, many progressive ideas never made it past the early consideration stage because of the knowledge of the 60 vote requirement.

Posted by: Petey | Apr 12, 2005 3:40:31 PM

Petey--Health care never got out of committees. Had it gotten out of a committee, maybe it would have been filibustered, but I'm not as sure as you apparently are.

Posted by: DHinMI | Apr 12, 2005 3:59:16 PM

Actually, Petey, the BTU tax died in the Senate because it couldn't get out of committee, and if it did it wouldn't have had 50 votes. If it could have got 50, it would have gone into Clinton's 1993 reconciliation package, which was filibuster-proof.

The failure of the Clinton health plan was, as they say, "overdetermined." There was a lot of calculation about how to deal with a filibuster, and the ultimate decision was to dare Dole to publicly block it. But to do that, Clinton needed to get solid Democratic support for his bill, which he couldn't quite do. The bipartisan "mainstream" bill that was a last attempt to salvage something did fail because of the threat of a filibuster.

And campaign finance reform is a bad example because people always want to say their for it but find a way for it to die. The most serious reform died in the House in 1993, not the Senate.

Infrastructure spending -- i.e. the Clinton "stimulus package" of 1993 -- did fall to a filibuster, forcing the administration to switch directions.

Posted by: Mark Schmitt | Apr 12, 2005 4:13:27 PM

In response to Ruth Fleischer's absolutely correct post, I have written about the Louise Slaughter report:
http://markschmitt.typepad.com/decembrist/2005/03/the_budget_proc.html

Thanks for contributing your years of first-hand experience with these questions, Ruth.

Posted by: Mark Schmitt | Apr 12, 2005 4:32:49 PM

I stand corrected on the BTU tax.

Although I'm sure you had a much better view of the health care debate than I did, I strongly suspect things would have gone down much differently if everyone wasn't operating with the 60 vote requirement in the back of their minds.

The health care plan for Democrats was much like SS privatization is for Republicans - no one wants to be for it unless it's actually gonna pass.

If the rules of the game had required 50 votes instead of 60, I think it would've played out quite differently - probably along the lines of the razor thin '93 budget vote. The Bob Kerreys of the world would've voted for the health care plan if push had been able to shove. And the prospect of cloture ensured it was never to get that far.

Posted by: Petey | Apr 12, 2005 4:48:23 PM

Ok Kit. Tell me who this sounds more like, Bush or those opposed to private healthcare, private retirement accounts, free speech on campuses and the internet, the second ammendment, lower taxes, etc?

"Fascism conceives of the State as an absolute, in comparison with which all individuals or groups are relative, only to be conceived of in their relation to the State...

...The Fascist State organizes the nation, but leaves a sufficient margin of liberty to the individual; the latter is deprived of all useless and possibly harmful freedom, but retains what is essential; the deciding power in this question cannot be the individual, but the State alone...." Benito Mussolini

Or how about this one...

"Outside history man is a nonentity. Fascism is therefore opposed to all individualistic abstractions based on eighteenth century materialism;"

I'm sorry Kit, but to somehow relate the guiding philosophy of "Bushco" (a philosophy rooted deeply in "eighteenth century materialism") to the philosophy of Fascism you would have to deny that Fascism sprung from socialists like Mussolini and Hitler that were dissolusioned by people's unwillingness to voluntarily yield their freedoms to the state.

Fascism is totalitarian, Fascism is state centric and Fascism denies that man is endowed by his creator with certain inalienable rights. It is not only cliche to compare the Bush agenda to Fascism it is absurd and ignorant of history.

Posted by: Lloyd | Apr 13, 2005 9:15:13 AM

Lloyd,
This is a silly debate, and I think Kit is wrong and that the Bush administration is not fascist, but since you brought it up, in some sort of attempt to imply that modern-day progressives are more closely related to Il Duce than Bush is, I'll note that
"...The [...] State organizes the nation, but leaves a sufficient margin of liberty to the individual; the latter is deprived of all useless and possibly harmful freedom, but retains what is essential; the deciding power in this question cannot be the individual, but the State alone...."
sounds as though it could have come out of John Ashcroft's mouth, or perhaps Rick Santorum's. It has nothing whatsoever to do with the views of "those opposed to private healthcare, private retirement accounts" blah blah blah.
"Fascism denies that man is endowed by his creator with certain inalienable rights" ....hmmm, might those rights include the right not to be declared an enemy combatant on the President's sole say-so - by an executive with the "inherent power" to break any law he sees fit to break in carry out his job - or the right not to be held indefinitely without charges or access to counsel or the courts, or the right not to tortured in Guantanamo or after extraordinary rendition, or the right to have the Geneva Conventions respected? Because, you know, the Bush Administration has denied that we have those rights.

Posted by: The Navigator | Apr 13, 2005 11:22:33 AM