The debate over filibuster reform

THE DEBATE OVER FILIBUSTER REFORM…. There’s been some good discussion over the last several days about the Senate filibuster and whether the process should be reformed. It seems, however, that some of participants have been talking past one another.

At The Moderate Voice, for example, Jazz Shaw complained about my tone, before warning Democrats, “Be careful what you wish for.”

Listen, Democrats… you didn’t like it when the GOP was running the table on you, stopping all of your agenda and building audition tapes for Legislators Gone Wild. If you didn’t have the filibuster, what judges would be sitting on all the courts right now? What other legislation would be in place? […]

Be calm. Take a deep breath…. If you get too greedy now, you’re going to regret it down the road, and likely sooner than later.

BJ at Newshoggers says the status quo is “clearly problematic,” but adds that Democrats should “think long and hard about what tools you want to hand the majority party when the scales ultimately shift again and you no longer agree with their agenda.”

A Political Animal commenter added, “It is hypocritical in the extreme for Democrats to do an about face on this issue and now advocate changing the system simply because we have power. The filibuster was an important tool during the dark days of the Bush years that we were able to use to block controversial nominees (maybe leglislation [sic] as well, I just can’t remember)… To now argue that the system is in need of reform is completely unprincipled and hypocritical.”

These are fair observations, but they’re looking at the issue in a fairly narrow way. 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.

I’m trying to look at this in a different way.

First, the notion that Democrats used filibusters to great effect is mistaken. Scott Lemieux notes that “apologists for the filibuster … literally can’t cite a single example of the filibuster working to good ends.” (Hilzoy noted Janice Rogers Brown the other day, but Judge Brown is, as of now, enjoying her lifetime appointment to the federal bench.) Elena Schor added, “After researching the history of meritorious filibusters, however, I was amazed to see how few instances there are of a successful stalling of just-plain-bad legislation.”

Second, when it comes to notions of consistency and hypocrisy, to help things along, I’ll largely concede the point. I think there’s a qualitative difference between previous (occasional) use of filibusters and the unprecedented, record-breaking system Republicans established in 2007, but let’s put all of that aside. If it will lead to a more productive discussion, I’ll plead guilty. I haven’t gone back and looked through my old posts, but I suspect I’ve probably defended more than a few filibusters, when I thought the minority was right and majority was wrong. I’ve seen the error of my ways. Was blind, now see.

With that in mind, let’s focus the discussion a bit. The status quo is a mess. 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 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.

What was once an exceedingly rare challenge, used under extraordinary circumstances, has become — after no public discussion at all — a mandatory supermajority simply to govern. Either one can defend this system, or they can call for reform.