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Defending the Filibuster (Again)

Sam Rosenfeld asked for my comments on Nathan Newman's well-argued "Hoping for a Mushroom Cloud," a passionate liberal argument for eliminating the filibuster. Newman starts with the familiar note that the filibuster has been "the tool of racists and segregationists for a century," but goes on to make a subtler argument: "Conservatives have thrived in a political environment where they can block any positive use of government. ...Blocking conservative action through filibusters has short-term gains, but it feeds the long-term cynicism of voters that government cannot accomplish anything." In other words, filibusters will always be more effective as a tool of conservative efforts to cut down activist government than the reverse. The relationship between policies and programs, political procedures such as the filibuster, and the impact of long-term cynicism about government is a great way to think about this, and I recommend Newman's post.

Sam was almost pulled over to the dark side. "I feel like I need to hear some more principled progressive arguments for this institution [the filibuster]" he pleads. And he is right that Newman is a lot more persuasive than the New York Times' attempts at a high-minded defense of the filibuster as if it were written into the Apocrypha of the Constitution.

I've written a defense of the filibuster before, in response to a similar request and also mentioning Sam. And I'm not inclined to do it again, because every time I start down this road, before I know it I've written 3,000 words more than anyone wants to read and it's 4:00 in the morning. But my earlier post didn't really address Newman's argument.

For that, I think I'll just refer back to something else I wrote last summer, an article on congressional reform that is mostly a review of a recent book by Julian Zelizer. (And which appeared in the American Prospect online, where Sam works, so this whole thing is circular) What I noted from the book was that procedural reform in the 1940s, 50s and 60s was built on the assumption that if the rules were different the results would change. Reducing the number of votes needed to end a filibuster from 66 to 60, breaking the "committee system" by which senile Southerners held total power over what was considered, and making votes public were expected to lead not only to passage of civil rights legislation, but to a much more activist, presidential government. Reformers assumed that they would help a strong president, who was likely to be liberal, set the congressional agenda.

I noted the irony that everything the reformers had dreamed of had now come true. The president can now set the congressional agenda. And yet, the result in practice is exactly the same: antigovernment Southern conservatives control the game, just as solidly under the new rules as under the old. The point is not that the reforms were mistaken or backfired. It's just the rule of thumb that any procedural reform is likely to have very different results depending on the political and cultural context. As political culture changes, the results become unpredictable. In this case, the big change that overwhelms everything was, as Kevin Drum noted earlier this week, the shift of Southern conservatives from a faction within the Democratic party to the base of the Republican Party.

This uncertainty makes it difficult for me to fully buy Newman's result-oriented view of the filibuster. I hope this isn't too high-minded or Rawlsian, but I think that given the uncertainty, one is best off accepting a neutral principle that you could live with if you didn't know whether your party was in the minority or majority, or whether your immediate cause would benefit or not from the rule change. Given the role that Circuit and Supreme Court judges play in setting the constitutional parameters for both government and individual rights for generations, the principle that a very committed 40% can block an appointment seems like a very reasonable one, one I would accept from behind the veil of ignorance.

The other point I would make in response to Newman is to point out that the greatest obstacles to activist government have been enacted under the filibuster-free zone called budget reconciliation. It is under that 50-vote process that the choices were made that reduced federal revenues from 20.1% of GDP to 16%, a barrier to action far bigger than just public cynicism about government.

Now I wouldn't mind at all if Republicans wanted to make a filibuster very, very difficult. Make the Democrats hold the floor, make them speak, make them master the most arcane rules and precedents, make them cancel those trips to fund-raising dinners and conferences at Aspen, and sleep in shifts in cots off the floor. That's fine with me. (Not actually being a Senator, of course, it's easy for me to say.) The filibuster is not a super-majority requirement. It is a measure of intensity, passion and commitment, a factor that a democracy should try to incorporate. (The fact that there's never been intensity, passion and commitment comparable to the Southerners' passionate commitment to segregation forever is just what gives the filibuster its ugly reputation.) The problem with the filibuster is that it's been reduced in recent years to a mere super-majority requirement. When Bob Dole was majority leader, he used to assert almost every day that "you need 60 votes to get anything done around here," and every bill usually got a test vote, sometimes on the motion to proceed to the bill, and if it didn't get 60, it was quickly pulled.

Assuming the Republicans force a real filibuster on a judicial nomination, it will be a very public spectacle. It's very different from quietly bottling up a nomination in committee, as the Republicans did to Clinton for six years and the Dems to Bush for some of 2002. It will receive intense public scrutiny and will have to be defensible in the modern media context. If the Bush judicial nominee is a reasonable-seeming, qualified conservative, it will be very difficult to mount a filibuster, because some Democrats will inevitably lose their nerve and there's nothing worse than starting a filibuster and then caving. If the judicial nominee, on the other hand, is a "Constitution in Exile" acolyte, with an extremist record in one area or another, then Democrats will stick together and gain strength. And they will be right. But it will take a very careful calculation at a key point, unless Bush hands the Dems a gift from the Bolton/Bernie Kerik school of nominees.

Republicans would like the debate to be about the nuclear option itself, the idea of filibustering judges rather than the judges themselves. If that's the main debate, then Joe Klein's argument in Time might be right: Democrats will be seen as legalistic and obstructionist. That's why we need to get past the nuclear option and to a real debate about actual nominees. Far from being anti-democratic, a debate on a real nominee will be a visible showdown between two visions of government.

Posted by Mark Schmitt on April 7, 2005 | Permalink


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The "nuclear" option, itself, is likely to seem highly suspect to most people. After all, it requires the Parliamentarian to cave and Cheney, himself, to rule that, somehow, unlimited debate on a judicial nominee, is "unconstitutional."

I don't know how the Republicans are going to come up with a narrative of the actual details of going nuclear, without seeming, well, ruthless and unprincipled.

The "nuclear" option, on its face, is going to seem like cheating; its not a straight-forward modification of the rules.

Posted by: Bruce Wilder | Apr 7, 2005 2:50:05 AM

I'd be happy to see a filibuster against William Myers. "This guy's just a mining lobbyist -- he's never even been a judge before!" seems like a compact and powerful argument. Democrats come off as reasonable, Republicans look corrupt.

Posted by: Ethical Werewolf | Apr 7, 2005 3:03:18 AM

Regarding the term 'nukular option', I get the sense that (R)s are using it comfortably, whereas (D)s (Harry Reid for instance) side step it with 'the so called...". Isn't it cleary in the interest of (D)s to have this labeled nuclear, and for Republicans to have it names something like the Founding Father's Original Intent blessed by Jesus option?

Posted by: theCoach | Apr 7, 2005 9:45:23 AM

given the natural rural advantage built into the senate structure, republicans will have an easier time securing majorities that can override fillibusters than democrats can.

Posted by: yoyo | Apr 7, 2005 11:20:01 AM

I have been surprised that the Republicans haven't just let the Democrats do the filibuster, but then refuse to push any other business until their nominees got a vote on the floor. They could paint the Democrats as obstructionists and then wait until the filibuster failed and get the votes on the Senators.

Posted by: Rob W | Apr 7, 2005 12:51:42 PM

Rob, that idea was probably derailed by the administration's problems pushing Social Security destruction. Last Novemeber, that probably seemed like a reasonable course, with the GOP leadership willing to bet that the Democrats would take the blame for shutting down government. At this point, it's probably more uncertain to the GOP leadership. If they push a shutdown to fruition over a dozen judges (all objectionable enough that the Democratic leadership is willing to show some spine), it's riskier.

All IMHO, of course.

Posted by: Barry | Apr 7, 2005 2:46:45 PM

I agree that Bolton is a terrible candidate, but it is some kind of rhetorical trick to create a category of Bolton/Kerik type candidates. They're unqualified for very different reasons, and transposing the Kerik reasons onto Bolton, while it would be nice in destroying his credibility, is a pretty sneaky move.

Posted by: washerdreyer | Apr 7, 2005 4:42:44 PM

I mentioned on Yglesias's blog that the argument for ending filibusters also ignores the point Mark made earlier about how House Republicans view anything over a simple majority as giving away too much. Without a filibuster expect more of the same in the Senate.

Posted by: Zach | Apr 7, 2005 6:54:55 PM

One public relations tactic the Democrats might employ is to package the 'nuclear option' with all the other radical changes to longstanding Congressional procedure and consitutional law that the GOP has tried to orchestrate in recent years. The so-called "conservatives" look like radicals when their various attempts to dramatically re-arrange the landscape are viewed in context.

Posted by: old hickory | Apr 8, 2005 12:41:47 AM

"The filibuster is not a super-majority requirement."

In what universe? Other than the budget, you can't pass anything without 60 votes.


I think you're usually the smartest lefty in the room, Mark Schmitt, but you're really missing the boat on this one.

Why, exactly, do you think America lacks so far behind other industrialized nations in social governance?

For at least 60 years now, the distance between a majority and a cloture super-majority of the Senate has been the graveyard of progressive legislation.

"I'm not inclined to do it again, because every time I start down this road, before I know it I've written 3,000 words more than anyone wants to read and it's 4:00 in the morning."

Stay up until 4:00 in the morning one night soon and rethink this one.

Democrats currently have an opportunity that is not likely to come around again.

Posted by: Petey | Apr 8, 2005 7:28:02 AM

It's not necessarily a sixty vote requirement. If you actually force senators to filibuster, you're going to see a lot more caving. not always, but sometimes.

Posted by: John | Apr 8, 2005 1:51:07 PM

I believe you've made a great, convincing argument, Mark. There should be an "intensity metric" and forcing senators to actually debate would be a good thing, imo.

Posted by: Roger Karraker | Apr 8, 2005 2:34:10 PM