The Debate Over The Filibuster

By BJ

Steve Benen replied to my, (and others), post on the filibuster. He notes that our argument is somewhat narrowly focused:

When one likes the party is the majority, he/she hates the filibuster; when one's party is in the minority; he/she treasures it. This argument emphasizes the need to be consistent, and remember that majority status comes and goes.

It works as a decent summary, and he is willing to concede that he might be guilty on the consistency part. I do think that part is rather important as it has been amusing to watch supporters of the unitary executive under Bush immediately flip-flop completely upon the election of Obama. Such blatant hypocrisy puts your credibility into the toilet, (or at least it should).

He also notes that while in opposition, the Democrats didn’t exactly use the filibuster to any great effect. I don’t find that in any way surprising, as I recall a great deal of discussion on the web wishing the Congressional Dems would actually find a working backbone amongst themselves being something of a theme during the late, unlamented Bush years. Though I will say that the fact that the current Dem leadership doesn't know how, (or didn't want), to use the tool isn't sufficient reason by itself to throw it away.

He then urges us to focus on the fact that the status quo is becoming untenable:

The American electorate can give a party the White House and sizable majorities in both chambers, but that party will still struggle badly to pass its agenda. A 41-member minority party can block legislation -- controversial or not -- by abusing an obscure procedural tactic that was never intended to be used to necessitate supermajorities on literally every piece of legislation.

Is this good or bad? Defensible or indefensible? Consistent [with] democratic principles and our constitutional system or not? Is this productive for the governing process or needlessly destructive? Was this the intended use of the rule, or has it been twisted beyond recognition?

Those who approve of keeping the filibuster around as a "check" -- despite the fact that it was never intended to block congressional majorities from passing legislation -- envision a cyclical dynamic: Republicans win voter approval, but are limited by the Senate minority. Democrats win voter approval, but are limited by the same obscure legislative tactic. Government through obstructionism. Everyone has a credible excuse for failing to deliver on a policy agenda.

This argument has clear merits, particularly with California providing an excellent example of what can happen when an obstinate minority is allowed to block needed progress. However, I find that Steve’s vision here is a bit too narrow as well.

The US government has involved in many ways that no longer fit the original model, and the argument over the unitary executive is illustrative of another area where it has went off-track. The House and Senate were designed to act as a counter-balance to the President, if not the ultimate authority, and not as a rubber-stamp to the presidential agenda as the GOP became in the first six years of Bush’s presidency. When I started really studying the US system, it seemed to me that it was designed to be obstructionist, to make laws as difficult as possible to pass, by requiring considerable cooperation between both houses of Congress and the President, or supermajorities of both houses to override vetos.

It's clear that the Office of the President was never intended to amass the kind of power it now has, nor was it likely foreseen that Congress members from all over the nation would put party above their constituents' interests on a regular basis. To me, the current problems with the filibuster are more a symptom of the extreme partisanship in Washington than the core problem itself. The system just wasn't designed for two parties that can't work together.

None of this is to say that the system shouldn't be reformed. Fester's post noting that it would be a good idea to invert the costs of doing filibusters onto the party carrying them out rather than the party trying to override them seems at least feasible, though I can foresee issues there as well. It is only to note that the current system evolved in conjunction with others, and that, as was the point in my first post, one should think through the consequences of any proposed reforms carefully before going ahead.

It is very easy to note that there are problems with the current system. In that, the Republicans are doing us all a favor by showing us all just how dysfunctional things can get. The real question is whether or not anyone can come up with a solution that won't be just as dysfunctional or open to major abuse by the party in power.

Comments

[zak822]

I can live with the filibuster as it is. I think that what we need is Democratic leadership that has the stones to force the GOP to filibuster for real instead of just promising to do it.

Let the public see who's blocking progress on bills the public wants. Simply aceding to the GOP's threat to filibuster makes us look weak and ineffective.

Sometimes, you have to fight. And Sen. Reid and the rest of the leadership don't have the moxie for it. That's the problem.