Why the Filibuster Isn't Going Anywhere
Wednesday, December 23, 2009 at 05:00PM No Associated Press content was harmed in the writing of this post
The filibuster has been all over the news lately, and on the left there is a growing consensus that it should be changed or abolished. For old times’ sake I decided to revisit the last time filibusters were front and center in politics: the Gang of Fourteen compromise that loosened up Democratic filibusters of some of George Bush’s judicial nominees.
My general recollection was that neither side was particularly happy about it. A local conservative columnist (sorry, couldn’t find a link) sourly wrote something along the lines of, “well I guess politics is beanbag after all.” Remember this happened in 2005, which is several geological ages ago on the Right Wing Freakout Timeline. The outraged polemics make for fabulous reading now that the GOP is in the minority. Andrew McCarthy howled that it was “an obstructive tactic that unabashedly nullifies majority rule” and spluttered (emph. in orig.)
the filibuster was not used at all throughout much of the Senate’s history. It is currently unavailable for over two dozen types of legislative proceedings. And it has never, ever been systematically employed in connection with judicial nominations. Thus, it is difficult to understand how altering or eliminating it in that context could credibly evoke visions of mushroom clouds rising above a smoldering Capitol.
Still, “nuclear option” has stuck….With “Armageddon” securely stamped on the rule change — one that would restore a two-century status quo of simple-majority confirmations while guaranteeing nominees only a vote, not a win — those seeking such a change were naturally cast as “extremists.”
There was plenty of other commentary on the right about the undemocratic nature of the filibuster, but it was not much more popular on the left. I don’t recall, and couldn’t find, any prominent voices taking the position of, hey it’s great that the Democrats had the filibuster at their disposal! The closest thing I found was a lukewarm endorsement by Kos on the grounds that it was making conservatives nuts. Digby summed up the feelings on the left best, writing (emph. in orig.) “I want that nuclear option, I need that nuclear option. I’m fucking dying to have that fight.”
Critics on both the left and right noted the intolerably vague language of the agreement that ended the filibuster, and that offers the best clue why the filibuster will likely be retained. It was what used to be called a gentlemen’s agreement, something that wasn’t formalized but that would be maintained through mutual understanding and occasional massaging.
They want to be able to endlessly flatter and indulge each other in the name of comity (in the last few weeks I’ve come to hate that word). They want the Senate to be a place where personalities trump party or policy, where managing relations is the first order of business - like a soap opera or a never-ending episode of a reality show where no one gets voted off. It is no coincidence that the membership of the Gang of Fourteen is a who’s who (Landrieu, Lieberman, Nelson, Collins, Snowe) of the high maintenance, egomaniacal misanthropes gumming up health care reform.
Opposition to it does not break down along left/right lines, but on establishment/outsider lines. The inability to pass health care reform on a simple majority vote highlights the differences on the left between those who ground policy positions in Beltway conventional wisdom and those who do not. Frustration with an opaque, clubby body that to all appearances is in the thrall of lobbyists has begun to peak. It is creating the same kind of anti-DC strange bedfellows who support auditing the fed and (to a lesser extent) opposed the FISA Amendments Act last year. The filibuster is one of the most visible symbols of that broken system.
Norman Ornstein is one of the few people to have defended it. During the Gang of Fourteen episode he argued that failure to keep it would cause the Senate to operate more like the House, which he derided as “a cesspool of partisan rancor.” He did not make a Constitutional case for it, though, or say it provided some essential function to the system of checks and balances. He just likes the way it helps encourage his particular concept of decorum.
The same is true of Senators. They want to maintain a system that maximizes their opportunities to demand to be catered to. Anything that presents more opportunities for obstruction gives individual Senators more chances to exert leverage, and more chances to be fawned over. That, much more so than parliamentary requirements, is what keeps the filibuster in place. Changing it will require a change in the capitol’s very culture, not just some slick procedural maneuvering.
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Ezra Klein has a piece in WaPo about this in which he describes some proposed remedies. He writes:
Both parties have become attached to this idea that they can block objectionable legislation even when they're relatively powerless. This is evidence, perhaps, that both parties are so used to the victories of obstruction that they have forgotten their purpose is to amass victories through governance. Either way, a world in which the majority can pass its agenda is a better one, a place where the majority party is held accountable for its ideas and not for the gridlock and inaction furnished by the Senate's rules. Law professor Lawrence Lessig often compares the dysfunctions of the Congress to the woes of an alcoholic. An alcoholic, he says, might be facing cirrhosis of the liver, the loss of his family and terrible debt. Amidst all that, the fact that he drinks before bed at night might not seem his worst problem. But it is the first problem, the one that must be solved before he can solve any of the others.