Filibuster Followup

To say a bit more about the eye-popping filibuster chart I posted earlier today, it's worth considering that the GOP's unprecedented use of the filibuster is, at the end of the day, part and parcel of a clear upward trend in filibustering over time. The Republicans, in short, are certainly perfidious, but their current filibustermania isn't a particular sign of perfidy nearly so much as it is the logic of a bad procedural rule playing itself out over time.

Fundamentally, this should worry people more than tactical gambits about how to paint the Republicans as obstructionists. The filibuster is a bad rule. The need for a bill to pass two different legislative houses elected by different constituencies and then be signed by a president who isn't responsible to the legislature is already plenty of countermajoritarian elements in the institutional porridge. In particular, progressive politics would benefit from making it easier to pass laws. Universal health care will be almost impossible to get enacted, but once enacted no country dismantles its health care system.

Comments

In particular, progressive politics would benefit from making it easier to pass laws.

Unless both houses of Congress and the presidency are being run by the neoconservative cabal known as the Republican Party. Which was precisely the case exactly one year ago.

Given the probability that this country will be hit with another terrorist attack in the near future - and the associated possibility that Americans will freak out and nominate neocon Republicans in response to such an attack - I'm pretty comfortable leaving the fillibuster in place for now.

Posted by owenz | July 23, 2007 3:45 PM

"Universal health care will be almost impossible to get enacted, but once enacted no country dismantles its health care system."

You keep saying that like irreversiblity is a good thing. People who think it is don't take the possiblity of making irreversible mistakes seriously enough.

Posted by Brett Bellmore | July 23, 2007 3:48 PM

Given the probability that this country will be hit with another terrorist attack in the near future - and the associated possibility that Americans will freak out and nominate neocon Republicans in response to such an attack - I'm pretty comfortable leaving the fillibuster in place for now.

Except we all know the Republicans would not hesitiate to eliminate the filibuster permanently in that situation, so Dems might as well eliminate it themselves now while they have the opportunity to do some good by its absence.

Posted by Ryan | July 23, 2007 3:50 PM

I am at a loss to understand how this a procedural rule that says "You must get 60% of the votes to pass" can be, over the run of things, anything but neutral on the conservative/liberal axis. It's obviously a barrier to change of any kind, and so to the extent there are unenacted progressive priorities, it is a barrier to those -- but (as we've seen) change can come in the form of more repressive, less progressive policies too.

Posted by Glenn | July 23, 2007 3:51 PM

The filibuster rule is the only reason that the "temporary" tax cuts for the wealthy aren't permanent.

Posted by Ethel-to-Tilly | July 23, 2007 3:54 PM

I'm with Matt. Get rid of the fillbuster tradition in the Senate and let the politicians be accountable for their actions. It stuns me that this is acceptable to Americans. I mean super majorities for impeachment and constitutional amendments or confirmation of judges, fine. But for basic legislation? No way.

Also it is a sign of exceptional republican perfidy. Look at the scope. A tripling of obstructions. You need to ask yourself, why now? In short the republicans are invalidating the 2006 election because if they let the Democrats pass legislation Bush will be forced to veto and the true face of American Conservatism will be revealed. The side benefit for the GOP is that up until now the media has been too compromised to report this accurately and the Dems reputation is taking a hit.

Your 'liberal' media at work.

Posted by Northern Observer | July 23, 2007 3:55 PM

The problem isn't the filibuster per se. It's that it has migrated from a parliamentary tactic to be pulled out on very specific issues that people care a lot about into a standard requirement of getting anything passed.

All you have to do is require actual filibusters. If you want to filibuster, you have to get up and talk the thing to death, and after a couple of days of talking, then we have our cloture vote. And if the cloture vote fails, we'll have another couple of days of talking. We'll only give up after several cloture votes. And if the filibustering side stops talking, then you only need 51 votes.

If you set it up that way, it is still available as a dire tactic that can be used where people really care strongly about opposing legislation. But it is no longer a 60 percent majority requirement for any Senate action.

Posted by Dilan Esper | July 23, 2007 4:01 PM

Indeed- the filibuster is a fantastic procedural tool protecting the minority. If you think popular legislation trends in a progressive direction, the filibuster merely delays the gains with the benefit of stopping really crappy but temporarily popular legislation (for instance a newer version of the Alien and Sedition Acts). If you don't believe popular legislation trends in a progressive direction, then the filibuster becomes even more useful to stop the potentially large onslaught of bad legislation.

That the Democrats can't or aren't exploiting the GOP's procedural obstruction of popular legislation for their own political gain is a problem either with the paucity of support for the legislation (stem cell research is great, but how many people think it is a voting issue?) or with the feeble, risk-averse problem of the Democratic majority who thinks it can simply "run on Iraq" in '08.

Posted by P | July 23, 2007 4:03 PM

The fact that there are enough Republicans to make a filibuster work is also a consequence of that election, which we went into knowing that rule would be in place. And in which the Democrats did not run on a promise to eliminate the filibuster. It's an interesting question how it would have come out, if eliminating the power of large minorities to block legislation had been an explicit aim of the Democratic party.

Pass a rule to eliminate it starting with the 2009 session, and we can enjoy the sort of election that "winner takes all" majoritarianism will produce, without subjecting the public to a bait and switch.

Posted by Brett Bellmore | July 23, 2007 4:05 PM

We should just get rid of the Senate. It's a ridiculous institution.

Posted by henry evans | July 23, 2007 4:06 PM

Given the probability that this country will be hit with another terrorist attack in the near future - and the associated possibility that Americans will freak out and nominate neocon Republicans in response to such an attack - I'm pretty comfortable leaving the fillibuster in place for now.

Funny, but I don't remember any Democrats rushiing to use the obstructionist power of the filibuster in late 2002, when the Congress gave Bush a blank check for Iraq. Nor am I aware of anyone trying to filibuster the Tonkin Gulf resolution to death. So filibusters didn't do squat to head off the two biggest foreign policy disasters in recent American history. There's no reason to expect them to perform any better in the next episode of national hysteria.

Posted by sglover | July 23, 2007 4:49 PM

I'm afraid I come down on the same side as Dilan Esper and Ezra Klein. If the Republicans are abusing the filibuster it's time to make them put their lifestyles on the line to make it happen. If they are prepared to truly read every Harry Potter novel into the Senate record on an issue, then at least there's some sense that they are standing up for principles that they are prepared to work for.

Right now there's no sense that you can pass *any* legislation with less than 60 votes, which is clearly a nonsense.

Harry Reid needs to be bombarded with grassroots complaints until he starts to make "filibuster" mean "filibuster."

And if the Republicans show the backbone to keep filibustering under real hard filibuster conditions? Then you can start talking about building a case for getting rid of it...

Posted by Meh | July 23, 2007 4:54 PM

In all the discussion of the filibuster, the really interesting question seems to be why it used to work, and why it doesn't now. Looking at those charts, the filibuster was rarely being used as late as the 1960s. Probably even then many of its uses were unsavoury, but the chart suggests that it was genuinely seen as a last resort that was to be used very rarely.

What changed? I have no clue, and I'd love to see Matt or someone else who knows more than I do address the question.

Posted by Justin | July 23, 2007 4:55 PM

Honestly Matt, the filibuster performs a valuable function through protecting minorities. The way to deal with this misuse of it is to make sure that all understand that the Republicans are putting the brakes on everything. They really have the bad side of a lot of these issues and the publicity will do them no good.

Posted by mark | July 23, 2007 5:23 PM

Honestly Matt, the filibuster performs a valuable function through protecting minorities. The way to deal with this misuse of it is to make sure that all understand that the Republicans are putting the brakes on everything. They really have the bad side of a lot of these issues and the publicity will do them no good.

Posted by mark | July 23, 2007 5:23 PM

What changed? I have no clue, and I'd love to see Matt or someone else who knows more than I do address the question.

Here's one hypothesis: That chart starts from a time when the Dems had over 60 members in the Senate, so perhaps the less frequent use is tied to its futility. Starting in 1979, however, neither party has ever gotten over 60 votes -- I think the longest stretch in which that's happened. So perhaps filibustering is just more possible in the past 3 decades, or at least perhaps that's part of it.

Posted by Glenn | July 23, 2007 5:29 PM

"In all the discussion of the filibuster, the really interesting question seems to be why it used to work, and why it doesn't now."

Well, there is a lot of history around 1970, including the first attempt at a "nuclear option" that might be relevant. I googled it up, and you can too.

Matt's hatred of the filibuster strikes me as confusing, and as showing way too much faith in procedural liberalism. Universal Health Care passed 51-49 is not politically secure, and the lack of a possible filibuster will not make it more politically secure.

Our current problems are not procedural, but political, regardless of what MY or the parliamentarians at Balkinization think. When you have a revolutionary minority of greater than say 10-20% you are in a world of shit.

Posted by bob mcmanus | July 23, 2007 5:38 PM

This chart is basically meaningless. First of all, to project an entire Congressional session based on the first few months is like projecting someone's home run totals based on the first 3 or 4 games of the season. Second of all, what is being measured here is not filibusters, but cloture votes. Many times, the majority doesn't bring a bill to a vote if they know they can't get cloture.

My guess is that what is being reflected is three things:
First, inexperienced legislative on the Democratic side. It's clear, for example that they were unpleasantly surprised by the outcomes of 2 of the 3 cloture votes on the immigration bill. That kind of thing didn't happen to Lyndon Johnson.
Second, a confrontational approach by the Democratic leadership, egged on by their more zealous supporters. This will probably fade because most legislators want to run for re-election based on accomplishments, not long-winded explanations of how obstructionist the other side is. Which is why projecting the current pace of cloture votes to the end of the session is so dishonest. (But $20 says, if the pace slows down, there won't be a retrospective Yglesias post in fall 2008 admitting that the chart didn't come true.)

Posted by y81 | July 23, 2007 6:06 PM

y81, that's such horseshit. The "surprises" on the immigration bill cloture votes were because Mitch McConnell couldn't count votes properly (or deliberately misrepresented his side), not Harry Reid.

Posted by Glenn | July 23, 2007 6:55 PM

Glenn, fool me once, shame on you; fool me twice, shame on me. Part of being an experienced legislator is knowing whom to trust. Lyndon Johnson wouldn't have been unpleasantly and embarrassingly surprised by the minority leader even once, much less twice in one week.

Posted by y81 | July 23, 2007 7:41 PM

I'll second keeping a super-majority requirement for confirming judges, as there is no two-house check on that process and it is, after all, the ultimate foundation for the third-branch check on the whole shebang.

Posted by rapoli | July 23, 2007 8:53 PM

dream on dreamer. Senators love the filibuster which gives each and every one of them a near veto. The power to put a hold on a bill (by threatening to filibuster) makes each senator a immensely important powerful person. No way will any concern about the public interest overcome that. Only the Senate can change the rule and they will not change a rule which makes each of them a very powerful person.

Not gonna happen fuggedaboudit. Don't waste your time dreaming of an end to the filibuster, when you can write relatively reality based posts on how nice it would be if everyone decided to love one another right now.

Posted by Robert Waldmann | July 23, 2007 10:51 PM

Since laws are fundamentally restrictions on someone's liberty, doesn't it reflect badly on progressivism that it's a philosophy that requires the easy passing of laws?

Doesn't it make progressivism just a soft kind of authoritarianism?

Posted by Adam Herman | July 25, 2007 2:29 PM