In Defense of the Filibuster Cont’d

by Brien Jackson

In regards to my defense of the filibuster, Brian Beutler responds:

To get even more specific, imagine for a second that every senator from every state was up for re-election every two years, and that, in 2010, this resulted in a 51-49 split with Republicans in the majority. That would be a pretty stunning upset. But it would still almost certainly be the case that Democratic senators had received more votes in total than had Republican senators. And yet, that wouldn’t be reflected within the body itself. Republicans would be the party in charge, they would chair the committees, and gum up the government, and the Democrats would be kicking themselves for having eliminated the filibuster back in 2009.

But these sorts of unfortunate peculiarities have little to do with the origins and intent of the filibuster and everything to do with the way the authors of the Constitution designed the Senate . And because amending the Constitution is such an impossible proposition, we’re probably stuck with them. But that doesn’t mean we should rely on an extra-constitutional tool like the cloture requirement to offset those problems. As often as not, the filibuster compounds them, and until the demographics of the country undergo a sea change, it disproportionately benefits the illiberal party.

I largely agree that there’s probably little that can be done about the structural problems of the Senate, given that there isn’t likely to be a lot of public support for a radical change to our system of governing at the moment. And obviously you don’t want to compound the problem, but at the same time you don’t want to amplify it either.

I think this is a difficult discussion to have through the specific focus of the filibuster, given that particular procedure’s history and baggage. Obviously it’s not the filibuster itself I’m looking to keep, but some form of minority protections in the legislature. It’s one thing to have a majoritarian House, because in having every seat up for re-election every cycle, and being apportioned on the basis of population, we can roughly expect it’s make-up to track the broader public opinion pretty closely, even if single representative districts can, in theory, produce some odd outcomes when you have close divisions. But the Senate’s staggered terms make it as often as not that you’ll have a majority body that simply doesn’t reflect public opinion, and you need something in place to check that. Most of the time you have the other 2 legislative points, the House and the President, either one of which could be in the hands of the other party. But I think you still need something within the Senate itself for those rare times like the aftermath of 2000, or what you could hypothetically see in 2 years. The trick is figuring out how to do that without stifling the ability of legitimate legislative majorites to govern, and while I think we can do that, I certainly don’t want to pretend I have some sort of silver bullet in mind either.

It seems like something that might really be worth revisiting if the Democrats end up with more than 60 seats after 2010, when you’ll have fewer political constraints to keep in mind.