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In recent news, Harry Reid and Mitch McConnell have agreed to kill filibuster reform:
The deal Reid struck with McConnell doesn’t end the filibuster against the motion to proceed. Rather, it creates two new pathways for moving to a new bill. In one, the majority leader can, with the agreement of the minority leader and seven senators from each party, sidestep the filibuster when moving to a new bill. In the other, the majority leader can short-circuit the filibuster against moving to a new bill so long as he allows the minority party to offer two germane amendments. Note that in all cases, the minority can still filibuster the bill itself.
A pro-reform aide I spoke to was agog. “Right now, you have to negotiate with McConnell to get on a bill,” he said. “Tomorrow, if this passes, you still need to negotiate with McConnell to get on a bill. It changes nothing on how we move forward.”
Jonathan Chait put the matter this way:
Basically, what happened here is that the good government instinct met the senatorial ego, and the latter prevailed because it is the most powerful force on Earth.
Basically. In the past I’ve lamented the possibility that the Republicans will eventually jettison the filibuster once it’s expedient for them to do so. Which is to say: once they’ve gained a majority in both houses of Congress as well as taken the Presidency. For good reason, I fear the short terms consequences. But lately I’ve been coming around to Scott Lemieux’s position, which is to cheer on this “nightmare scenario”:
Such potential short-term setbacks shouldn’t blind us to the fact that the filibuster is a transparently indefensible feature of American government, and if it takes a temporary Republican advantage to get rid of it, this is a price worth paying.
In theory, the filibuster is a terrible idea. To be sure, democracy means more than simple “majority rule,” and it is important to have institutional arrangements that protect minority rights. But the constitutional design of American government is already an unusually cumbersome one with many veto points that constrain majorities. It already requires the support of two independent and powerful houses of Congress and the signature of an independent president with veto powers. After passage, legislation is then subject to review from independent courts. Adding extraconstitutional features that make passing legislation even harder by further empowering legislative minorities must surpass a very high burden of proof. Lending credence to minorities in a legislative house that is already terribly malapportioned cannot meet this kind of standard.
If the filibuster worked well to protect the rights of powerless minorities in practice, one might overlook how bad it is in theory. But the filibuster has, if anything, been even worse in practice than it is in theory. It’s not, exactly, that the filibuster fails to protect “minority rights.” The problem is that the national minorities that the filibuster has actually protected—such as lynchers, people who believe African Americans shouldn’t be allowed to vote or use public facilities on the same terms as whites, people who believe women shouldn’t receive equal pay for doing the same work as men, and people who believe that gays and lesbians should not be allowed to openly serve in the armed forces—are generally powerful minorities who were already grotesquely overrepresented within the political process. The evidence that the filibuster can help underrepresented minorities is scant. The filibuster was a very powerful tool for stopping civil-rights legislation but did nothing to stop the passage of the Fugitive Slave Act, the Espionage Act of 1917, or the Taft-Hartley Act.
How can I possibly disagree at this point? I am hesitant likewise to invoke the Framers, for their intent in writing the constitution was certainly anti-democratic, as I noted a week ago. But Madison in particular was also quite vocal about not wanting to hamstring government so much that it couldn’t readily pass laws. Sure, he was horrified at the sheer number of laws passed by state legislatures in the aftermath of the American Revolution, but he also believed greatly in the efficacy of government’s ability to, you know, do stuff. As it stands, I’m not really sure the United States Senate can do much of anything at all.
If there is going to be filibuster reform, it will probably come when the Republicans are back in power. When that will be I have no idea. I’m not exactly… ahem… rooting for this to happen anytime soon (or in my lifetime). But when it does, at least we can take some solace that something good will happen: because those dudes don’t fuck around.
Image may be NSFW.
Clik here to view.
Image may be NSFW.Clik here to view.
