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Eliminate the Filibuster
Ever since Democrats changed the Senate’s rules to prohibit filibusters of judicial appointments, Republicans have been debating what to do in response once they take the majority. Some have argued for returning to the status quo before the changes, while others contend that we should stick to the new rules to give Democrats a taste of their own medicine. I argue we should advance the changes and eliminate the filibuster entirely.
Liberals generally think they’ll benefit from the end of the filibuster, but the truth is that conservatives would gain far more from its repeal. For decades, the filibuster has been used to entrench the bureaucratic state. In the thirties, Roosevelt successfully intimidated the Supreme Court into overturning a century of precedent, saying that the federal and state governments had little authority to interfere in freely negotiated, private, contractual arrangements. That move paved the way for the Wagner Act, minimum wage laws, price controls, and — eventually — the ACA; basically the entire progressive agenda. The Supreme Court’s panicked reversal allowed progressive vote-buying by government spending, which led to the formation of durable progressive constituencies, and a decades-long, successful campaign to take over the judiciary.
Fortunately, Democrats have not learned the lesson of their own success. Unfortunately, neither have Republicans who favor reinstating the filibuster, despite the fact that Obama’s appointments can’t be rescinded and that unilaterally reestablishing the old rules will only concede the conservative agenda. Conservatives have to recognize that progressives have changed the nature of the relationship between the organs of government and — while adhering to the rules in the constitution — we mustn’t shy away from changing other rules to advance our agenda of greater individual freedom.
When government was small and restricted to enumerated powers, the filibuster might have served as a brake on the expansion of government and the diluting of individual freedom, much as the judiciary checked the expansion of government power before the progressive conquest of the courts. These days, however, it serves the opposite purpose, protecting expanded government and securing the progressives’ gains at the expense of individual freedom. At the same time, it limits the ability of conservatives to undo the progressive project by requiring supermajorities to undo their progress. When was the last time that a conservative coalition had a filibuster proof majority at the same time that a conservative held the presidency, and how likely do you think we are to get a situation like that any time soon?
Without the filibuster, the ability to dissolve entire cabinet departments and rewrite the budget and immigration law with simple majorities in Congress and a Republican president is much more likely and probably just around the corner. In fact, the complete end of the filibuster — along with the financial ruin of the welfare state — could spell the beginning of a golden age where government seems so unstable and unpredictable that the electorate simply won’t trust government with any important responsibilities. To usher it in, Republicans only have to have the courage to eliminate the filibuster the next time that Democrats attempt to frustrate their efforts to redesign government from the majority position.
Conservatives didn’t start the transformation of the Senate, and conservatives can’t let the transformation end at a point determined by progressive opponents. Conservatives need to advance the conservative agenda.
Published in General
Interesting idea. Just a heads up. Ricochet is very bad at dealing with things copied from Microsoft Word, so make sure you paste it into Notepad or something similar, recopy it, and then paste it on the website.
Ah, I was copying and pasting but inside of the browser. Actually, I’m a UNIX/Linux user, so I never use Word. I read it to edit it, but did I miss something that gave it away? Thanks for the tip.
If you look at the member feed, your post “ate” the posts underneath it. This is a well know problem when pasting from other programs. Ricochet is not good with dealing with the additional formatting, but it should be fixed eventually. Max the Volunteer Admin can fix it for you if you send him a PM.
I noticed the nesting in the member feed, but I didn’t know that the nesting was incorrect. I think that I’ve fixed it. I didn’t need to contact the administrator. I noticed when I cut and pasted the text into the text box, some of the text had a different font. There’s no font control on the editor, but I toyed around with it and fixed the fonts by additional cut and paste operations. Does it look correct to you now? Thanks.
All good here, glad to help.
How about return the filibuster to its origins – a mechanism to postpone (not prevent) a vote until the minority had a chance to be heard?
In the past, this was done by having the filibuster last only as long as someone from the minority was talking, unless the majority could muster a super-majority (60 votes) to force a substantive vote (See James Stewart in Mr. Smith Goes to Washington).
Sometime in the last several decades we changed the system so the minority could prevent a vote indefinitely without the minority having to do anything.
Full Size,
That’s what confused me about yesterday’s Keystone vote. I guess I’m showing my ignorance here, but it looked to me like it failed merely because 60 votes weren’t cast in favor. For the bill to fail, I thought it also required someone to start a filibuster AND a sufficient number of those who voted against to say they wouldn’t vote to cut off debate. I thought all those things had to happen. Did all that happen yesterday or did it fail merely because it didn’t get 60 votes?
I would not eliminate the filibuster entirely. I would rather make it substantive rather than virtual. As Senator has unlimited time to discuss a topic unless a cloture vote succeeds in ending his time. However, but actually has to speak. No breaks. And his talk has to be germane to the bill being discussed.
What if a bathroom break is needed? Depends, I say. But if the Senator leaves the floor, he has yielded, and ends the filibuster.
The best thing about this approach is given the age of Senators today, requiring them to stand and speak continuously gives us a chance to thin the herd — or at least ensure Senators are in robust health.
Seawriter
I agree with the above. Don’t eliminate the filibuster, but insist they be “real” filibusters, i.e., those seeking to block or delay must physically engage in unlimited debate, not just the threat of unlimited debate. The filibuster has evolved into the latter.
If we’re looking for innovations in Congressional rules, I’d also get rid of lame duck sessions, and their mischief potential. With modern transportation and communications, I see no need to wait until January to seat new Representatives and Senators. They should be seated as soon as the proper authorities in their states certify the election. One thing the Westminster system gets right is that the transfer of power is more-or-less immediate following an election. The moving trucks start rolling right away.
I have no love for the filibuster and would not be sad to see it go, but I am skeptical it would be much of a panacaea.
I think we underestimate the utility of the filibuster to the majority party. Given an electorate in which base voters and “swing” voters often have opposing opinions, the filibuster allows the members of the majority party to support a bill in theory (thus pleasing their base) safe in the knowledge it will never be enacted (which would anger low-information voters).
As we always like to complain here, Senators tend to be spineless toadies. Do you think they really want to be associated with enacting controversial (and potentially painful) legislation?
And don’t forget that the filibuster is just one of many “gentlemen’s agreement” types of procedures in the Senate. There are plenty of other ways a minority party can gum up the works (such as refusing unanimous consent on minor procedural votes). Without the filibuster, I would expect to see Democrats use these tactics – and Republicans to let them.
I think the biggest factor in determining the Senate’s actions is not the filibuster but the popular election of Senators.
The phrase “incentives matter” applies at least as much to politics as to economics. Having popular elections means that majority party leadership has every incentive to ensure that Senate legislative outcomes align with the perceived opinions of swing voters in the states with competitive Senate elections in the upcoming cycle. This essentially guarantees disappointment for the Republican base.
As long as that huge incentive remains, the filibuster is just an administrative sideshow. Eliminate the filibuster, and Mitch McConnell will just find another pathway to the exact same (depressing) legislative outcome.
The filibuster as it is today serves the purpose of making it difficult for government to change the status quo, and that strikes me as a good thing on balance. Needing to convince at least a few of the other party of the value of legislation is a curb on a majority steam rolling over the rest of us as soon as they get 51 votes. As the majority changes hands every couple of years or so, it creates stability that everything is therefore not suddenly up for grabs again.
The filibuster is by no means the worst feature of the senate rules. That superlative goes to the power given to the majority leader. We have seen what is wrought by such power in the hands of an evil man motivated more by partisanship than patriotism.
I agree with you that popular election of Senators is a big problem—I was only trying to contain the discussion to procedures and possible changes for the near future—and I think that we should try to undo most of the populist intiatives of the late nineteenth and early twentieth centuries. In fact, our constituional experience suggests a lot of possible changes, and one day I wanted to write a post about proposed constitutional amendments. Giving states the right to determine the means for selecting a Senator would be at the top of the list. The change would make Senators more responsive to local concerns, which are usually reflected in state-wide races like the race for governor, and less responsive to a national party discipline.
I think that there’s one question that you need to ask yourself: what condition does stability benefit in general? Does the stability of the government benefit a large government, or does the stability subvert large government? My point was precisely that when government was small, the constitutionally conservative Senators made the mistake of assuming that by favoring the status quo, which at the time, was limited government, stability tended equally to preserve limited government and to preserve large government, but the stability really favors the gradual and irreversible expansion of government. The natural ally of limited government isn’t stability. It’s instability. Make the government less dependably present, and you make the government less attractive a locus for the solutions to problems.
I wondered about the vote as well. I also thought it had something to do with invoking cloture, which requires a 3/5 majority or 60 votes, in order to forestall a filibuster, close debate, and proceed to a final vote for passage. I thought that failure consisted in the Democrats’ succeeding in blocking the measure rather than rejecting it outright. This is all wrong. (It didn’t help that this National Journal article incorrectly reported it as a cloture vote.)
A bit more digging yielded what looks like the right explanation backed up by a primary source. See the comment right below.
I was wrong, wrong, wrong in comment #15. Tuesday’s Keystone vote was not a cloture vote; it was the product of a unanimous consent agreement (UCA) reached last Nov 12th. Under the agreement proposed by Landrieu, the number of votes for passage of the measure was set at 60.
Apparently, UCAs requiring a 60-vote threshold for passage of a measure have been in use since the 1990s. Such agreements appear to be a way to get around the slow and cumbersome procedures that typify usual Senate rules; I guess setting the threshold higher is a way to anticipate likely opposition to and filibuster of a thorny measure.
Good point.
Snirtler, thanks. After thinking about it I thought it was probably something convoluted like that.