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.