In Defense of the Filibuster

by Brien Jackson

The topic of the week seems to be the filibuster, and the general consensus amongst progressives is pretty resounding; get rid of it. Well to echo the sentiment I’ve taken to more or less everyone else’s blog, let me say that I think this view is incredibly short sighted, and a very large over reaction.

First of all, I think it’s important to understand how, exactly, the filibuster functions, or can function, in regards to the larger context of the Senate. Scott Lemieux, in comments, asked me how exactly the filibuster protected under represented minorities, and my answer was pretty simple; it doesn’t, and I’m not really sure how it could. What the filibuster can, or could, serve to do, however, is to restrain majorities who aren’t really majorities. To that end, consider this statement from Ezra Klein for a second:

Rather, I’d argue that the central question is “legitimacy.” We have a party-based electoral system that, particularly in the Senate, pushes towards a relatively even division of power. The question then becomes whether we’re more comfortable with the consequences of a system where the minority can block good policy or the majority can pass bad policy. I’d prefer the latter: The policies of politicians we voted for have more democratic legitimacy than the system’s structural preference for inaction. Elections should be about the bills passed by the majority rather than the obstructions erected by the minority.

And that’s fairly hard to argue against, if you view the partisan make up of the Senate to be a pure representation of the will of the voters. But why, exactly, you would think that I don’t really know.  Only 1/3 of the seats in the Senate are contested in any given election. At least 16 states will have no Senators on the ballot each cycle. It’s rather common for parties to lose seats, even a fairly large number of seats, in the body yet still retain control, or to suffer a fairly substantial loss in the aggregate yet come out fairly well because the other party was defending more seats that cycle. So, in that respect, you actually get majorities in the Senate that obviously don’t reflect the sentiments of the voters based on the last election.

The most picture-perfect argument for the Senate is, ironically, that old bugaboo, the 2000 election. Until Jim Jeffords bailed on the GOP, Republicans controlled the House by 9 votes, had the majority of a 50-50 Senate split based on the tiebreaking vote of the Vice-President, and, of course, had control of the White House despite getting fewer votes for the office than the Democratic candidate. Additionally, they lost seats in both houses of Congress in 2000, including 4 in the Senate. Is there any real argument that this unified government was the result of the country’s overwhelming preference for the GOP agenda? Obviously not, and in this sense preserving the ability of the minority to block the majority’s legislation represents, paradoxically, a majoritarian measure (or a counter-countermajoritarian measure if you prefer).

Now, obviously, this is an anomaly, and anomalies do not make for great precedent. With that in mind, I certainly wouldn’t argue that the filibuster is perfect, or even functioning well at the moment. The 60 vote requirement, for example, seems rather absurd to me. Maybe there was a time and a partisan atmosphere where getting 60 votes for cloture on a non-fiscal bill was fairly likely, but in the current system it seems fairly unlikely that any party, short of having 60 or more members themselves, is going to be able to garner that sort of consensus on any package that can’t be taken to the reconciliation process. But I’m not sure, at this point, that that’s an argument for eliminating the process altogether so much as it’s an argument for modifying it. I’d suggest trying a 55 vote bar for cloture instead of 60. A 55 seat majority isn’t unattainable, or even particularly unusual, but it’s also rather hard to fluke into. It also shouldn’t be terribly hard for a majority of 51-54 to find a handful of members in a relatively large minority to support cloture, at least, on legitimately popular pieces of legislation. On the other hand, having the filibuster as an option still restricts a relatively small majority that may not even acurrately reflect the will of the electorate from ramming through unpopular aspects of their agenda.

Of course, all of this only matters in the event that one party controls the House, the Senate, and the Presidency. In the event of a split at any point of the legislative process, both parties have a majoritarian stake, and can block the other party with that majority. So, in perspective, the entire debate is focused around a relatively unlikely situation in the first place.

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