Covering the Front and Back Pages of the Newspaper
February 9, 2010
POLITICS: The Legislative Filibuster: Democracy's Sobriety Checkpoint
In recent weeks we have been deluged by hand-wringing columns from "progressive" pundits bemoaning the filibuster rules in the Senate - which allow a determined and unified minority to block legislation that has fewer than 60 votes - and essentially declaring the filibuster to be proof that American democracy doesn't work and should change the way it does business. (See Brian Darling's discussion of one recent example of the genre from Paul Krugman declaring the filibuster to be the "downfall" of American greatness, and here for Ezra Klein declaring that "The Senate's problem is not disagreement. It's elections."). The immediate cause of the shrieking is the inability to pass Obamacare through the Senate in the form in which it passed the House, which the progressives decry as proof that America can't be governed, ignoring the alternative possibility that there are better approaches to health care that do not involve an Obamacare-style comprehensive bill at all. For some liberal critics, like Vice President Joe Biden (a man who participated in countless filibusters in 36 years in the Senate) or the New York Times editorial board, this is a posture of pure opportunism diametrically opposed to how they viewed the value of the legislative filibuster during the Bush presidency, while others, like Mickey Kaus, have long argued that the legislative filibuster* should go because of its role in obstructing progressive legislation.
Regardless of their motives, however, the progressive critics are wrong. The legislative filibuster is an essential, traditional check on a particular weakness of democracy - the very weakness the progressives seek to exploit by passing Obamacare before the 2010 elections.
This much is true: the filibuster is undeniably anti-majoritarian, and thus in a general sense anti-democratic. The House, even gerrymandered as it is, provides a roughly proportional representation of the American people; each Member represents a comparable if not identical number of people, all its members face re-election every two years, and a bare majority vote is needed to pass a bill. This has been true of the House throughout most of our history (the filibuster was abolished in the House in 1842).
If a recently constituted popular majority was the rule of the day, that would be all we need. But the Framers of the Constitution also gave us a Senate that is deliberately anti-majoritarian: Senators give equal representation to states of varying size, only a third of its members face the voters each biennial election cycle, and until the adoption of the 17th Amendment in 1913, Senators were selected by state legislatures as de facto representatives of state government rather than of the people. While the Constitution says no more about the filibuster than that "[e]ach House shall determine the Rules of its Proceedings," (Art. I Sec. 5), the Senate by tradition allowed for unlimited debate (more here and here). That tradition has always had its critics; it was first challenged by Whig Senator Henry Clay in 1841 in a debate over bank legislation, was subjected to cloture by vote of two-thirds of the Senate by rule change in 1919 (a procedure first used to ratify the disastrous Treaty of Versailles against a Republican filibuster), and the threshold was lowered to 60 votes by the Democrat-controlled Senate in 1975. And there are exceptions: without going into exhaustive detail here, the major exception is the "reconciliation" process used for tax and spending bills, which cannot be filibustered and thus may pass with a bare majority. But the basic ability of the minority to prevent a floor vote on major domestic legislation has never been eliminated, and stretches back to the dawn of the American Republic.
For conservatives, of course, the fact that the filibuster has been time-tested as part of our Constitutional structure is reason in itself to be skeptical of efforts to eliminate it; experience is the lifeblood of conservatism, after all, because it represents the collected lessons of trial and error of the greatest number of people. But the progressive critics, most vocally the pundits who have never worked as anything but a pundit, tend not to put much stock in experience, so let me address them on their own terms.
I would give more consideration to the arguments against the filibuster were it not for one inescapable fact: for a variety of practical and political reasons, federal legislation, and in particular large, "comprehensive" federal programs and regulatory schemes, are almost never repealed, pretty much regardless of whether they work well or not. They're generally designed that way: the President promises a for-all-time solution to a problem, bills are written so as not to require reauthorization or in some cases (for new entitlements) not to require even new appropriations, bureaucracies are created, unionized civil servants hired, businesses, lobbyists and legal advisers grow up around the regulatory scheme, and self-interested segments of the population grow dependent on the status quo. In other words, if you're concerned about the dead hand of tradition ruling the future, the last thing you should want is a system that makes it easy for a political party that wins a majority in one election cycle to saddle us permanently with massive new federal legislation.
This is, of course, why reconciliation is different: while it is difficult to undo bad spending decisions, for some of these same reasons, it remains ultimately the case that tax and spending policy is set anew each year, as it is in states and municipalities across the country. It's also why, when Congress does face a genuine need to act quickly, it can attract bipartisan, filibuster-proof majorities to enact bills like the Patriot Act and TARP that - whatever their other flaws - had to go back to Congress for reauthorization later. But in cases like Obamacare, there is no pretense by its supporters that this is intended to ever be revisited from scratch again.
Meanwhile, the transitory nature of the Democrats' majority is already on display. The 2008 election cycle was already something of an aberration, given the role of the September-October financial crisis in boosting the Democrats' fortunes; now it seems highly likely that Republicans will drastically narrow their margins, if not erase their majorities in one or both Houses, in this fall's elections. Already, the margin of passage of Obamacare in the House is in doubt. Knowing that we sit at the likely high water-mark of the Democrats' fortunes, why should our system make it easy for them to enact legislation that could outlive our grandchildren? If the public truly, after two years of reflection, wants Obamacare, it can always elect still more Democrats this fall to make it law.
Democracy, tradition, free markets, federalism and Constitutional originalism are all derived from the same basic observation: people make mistakes, and even electorates and markets can err in the short run - but the more people whose experience you involve in a decision, the larger your sample size, the better your chances of getting it right. Our democratic system respects the ultimate right and power of the majority, but it contains checks and balances precisely to prevent short-term majorities from saddling the country with long-term decisions. A Senate majority large enough to break a filibuster takes time and geographically broad-based appeal to develop, as it should - even the high Democratic tides of 2006 and 2008 weren't robust enough to provide the margin of error against the death of a single Senator derailing the 60-vote majority. There is no reason why our system should disregard its longstanding defenses against the perpetual rule of a single election cycle's fleeting majorities.
* - I'm limiting my discussion here to filibusters of legislation. I've discussed at length here and here my views on why filibusters of judicial and executive nominees are bad, some strategies for eliminating them, and why it may be unfortunately necessary for Republicans to use them in the short term to put pressure on recalcitrant Democrats to agree to mutual long-term limitations on their use. Worst of all, of course, is the tradition of single-Senator "holds," often anonymous, a tradition that's been badly abused by both parties, sometimes for nakedly personal gain or revenge.