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Misremembering the Filibuster

PH2009073001432.jpgConor Friedersdorf mounts a very standard attack on those of us advocating procedural reforms in the Congress:

What is most striking is the short memory of progressive bloggers on these matters. Isn’t Social Security a “serious, foreseeable and solvable” threat to America’s fiscal health? Didn’t President George W. Bush campaign on its privatization? Wasn’t he unable to make that happen even at the height of his post-9/11 popularity, with a complacent media and a friendly Congress? And don’t progressives regard that as a good thing? What about Ronald Reagan, and his promise to shrink government? Despite two easy wins at the polls, he never managed to eliminate the Department of Education, or to radically shrink the bureaucracy.

Social Security is not a serious threat to our finances. But imagine it was. The president's plan would have done nothing to ease Social Security's long-term problems. In fact, it would have worsened the situation by requiring a hefty amount of short-term borrowing to fund the new accounts. Nor was Social Security privatization killed by the filibuster. It never even made it out of committee.

But if Social Security privatization had been a popular policy able to attract a majority of the United States Congress and it had been blocked by 42 filibustering Democrats, that would be bad. I am much more comfortable with a polity in which the parties are judged based on the legislation they passed rather than their inability to pass any legislation. I am much more comfortable, in other words, with majority rule than with Senate rules rule.

Friedersdorf goes on to explain that the "United States government is built to resist radical changes in policy" and it's worked pretty well so far. Has it? The filibuster did not always take this form. Woodrow Wilson, for instance, persuaded Congress to adopt a rule allowing two-thirds of senators to vote for cloture. Before that, a single senator's filibuster couldn't be shut down under any circumstances. In 1975, cloture was lowered from two-thirds of the Senate to three-fifths. The committee structure has been changed over the years, as have the rules around seniority and the size of the Rules Committee. The country has changed since its founding, and so too have our institutions.

The filibuster, however, has undergone little-noticed changes. Even as successive generations have weakened it by creating the option of cloture, the filibuster itself has become more present in everyday legislative maneuvering. The political scientist David Mayhew argues that we've misremembered our own past on this matter. He's written that Senate has never faced “any anti-majoritarian barrier as concrete, as decisive, or as consequential as today’s rule of 60."

That seems strange, of course. After all, the filibuster was stronger back in the day. But it wasn't used to create a de facto 60-vote majority. It used to be more akin to a temper tantrum. Mayhew looked at FDR's court-packing scheme as one of his examples. The filibuster hardly figured into the discussion. “General opinion is that the [bill] will pass,” wrote the conservative Portland Herald Press, “and sooner than expected, since votes to pass it seem apparent, and the opposition cannot filibuster forever.”

Its elevation to the decisive rule in the U.S. Senate is a recent development, and one that has taken a countermajoritarian institution (both in its structure and representation) and saddled it with a supermajority requirement. The product is an almost impossibly obstructed legislative body. We tend to assume this will work out fine, as we've had the filibuster forever, and we're still around. But the evidence is that the filibuster did not really exist in this form before, and so it's very hard to say whether it will work out fine. And those who think that the political system will always respond to emergency, and that countermajoritarian rules don't matter, should really take a look at what's going on right now in California.

Photo credit: Stefan Zaklin -- Getty Images .

By Ezra Klein  |  July 31, 2009; 4:13 PM ET
Categories:  Congress  
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The Mayhew citations--are those from his book "Congress: The Electoral Connection," or from something else?

Posted by: viveapple | July 31, 2009 4:34 PM | Report abuse

I think the broader problem is with political solutions in general. With political solutions 51% get what they want and 49% don't, but with market solutions 51% can have Coke and 49% can have Pepsi. The real solution is to limit the number of problems being "solved" by Congress. That's the beauty of limited Government and free markets.

Mob rule is scary and anything that protects us from mob rule is in the best interest of individual freedom.

Posted by: fallsmeadjc | July 31, 2009 4:40 PM | Report abuse

Democracy isn't just majority rule, it's respect for minority rights. The Bill of Rights is antimajoritarian (Congress shall pass no law, even if it has the votes). The filibuster is perhaps too crude an antimajoritarian process, but I think it used to have some reasonable value. That value is minimal now because commitment or passion is no longer required. It used to be that senators wanting to filibuster had to stay all night, else debate would stop and a vote would proceed. Similarly, those wanting to break a filibuster had to make a commitment, to ensure that a quorum was present if talking ceased. Filibustering was hard work! Now there seems to be a gentlemen's agreement that none of the tough stuff has to happen. If you have enough votes not to cut off debate, you win, debate stops, and the Senate goes on to other topics. It's just another vote. You don't suffer the personal effort or political embarrassment of stalling all Senate work for the sake of your side of the argument.

Posted by: dwsmall | July 31, 2009 5:01 PM | Report abuse

Minority rights are already accounted for in the structure of the senate. What you're both arguing for is that we acede to the demands of the minority of the minority.

The filibuster traditionally played the same role that the house of lords played in the UK: not something that could defeat legislation, but rather something that could slow it down. Now it's being used as a mechanism to veto legislation entirely. Every time the House of Lords overplayed their hands, they would have their power chipped away some so that they couldn't do that again. Now that the abusers of the filibuster are overplaying *their* hand, we may need to chip away at that.

Posted by: constans | July 31, 2009 5:52 PM | Report abuse

I agree that the filibuster has been taken much too far and probably does a lot more harm than good.

I have done a fair amount of recent study of the filibuster and have also found from very good sources that it was rarely used before recent times. A big part of the reason is that when the filibuster was tried, the bill wasn't just killed if there weren't 60% or 2/3rds of senators to vote for cloture. The filibustering senators were made to talk non-stop to prevent a vote. After days or weeks, this became tiring and difficult, and it looked bad, or very bad, in the press.

So senators were reluctant to filibuster and rarely did it.

The argument that the filibuster also protects things like medicare and social security is not as strong as it may sound.

If Republicans ever dared muster 50 votes and eliminated social security or medicare, they would not have anything close to 50 senators or the presidency or the house by the next elections, and these programs would be quickly reinstated, and never dared eliminated again. Moreover, the Republicans would really show their true colors, and people would really learn the dangers of voting for them.

Without the filibuster, bad ideas can get through easier, but once tried, once people see how false the propaganda about them was, they can be quickly voted away in future elections.

Conversely, lack of a filibuster allows the trial of great new ideas like universal health care, and once a great idea is tried like this, because it only takes 50 votes to try, people will see how false the propaganda about it was, and the Republicans wouldn't dare get rid of it, even without the filibuster, as with Medicare and old age Social Security.

We would have had universal health care long ago if not for the filibuster, and once people tried it, the Republicans either would not have dared get rid of it, or they would be quickly voted out if they did, and it would be quickly reinstated, and America would have learned some great lessons by trial and experience. One of the key benefits of not having a supermajority type filibuster.

Posted by: RichardHSerlin | July 31, 2009 9:00 PM | Report abuse

Friedersdorf goes on to explain that the "United States government is built to resist radical changes in policy" and it's worked pretty well so far.

my immeidate thought about this is that the biggest beneificiary of this "resistance to "RADICAL" changes in policy" are those who use "states rights" issues to deflect the will of the majority - ending slavery was a radical change, employee rights was a radical change, desegregation in the armed services and in schools was as a radical change, civil rights was a radical change, direct election of senators was a radical change, universal health care would be a radical change, and universal right to vote would be a radical change

i have a hard time defending filibusttering, it is an impediment to good government, with little redeeming value

Posted by: jamesoneill | August 1, 2009 3:26 PM | Report abuse

Your argument is pretty disingenuous and self-serving. Basically, you can't get what you want under the system so change the system.

There were plenty of filibusters led by liberals in the 1980's to block conservative legislation on social issues. You weren't blogging then of course, but show me the high-minded liberals who opposed filibusters then on the grounds that they were bad for democracy. Alternatively show me one liberal led filibuster which you opposed!!

Your side had used plenty of filibusters when it has suited them and will again.

Posted by: panza2mil | August 1, 2009 7:07 PM | Report abuse

Okay so as time has gone on, ONE senators filibuster turned into 33 to filibuster turned into 40.

And what Mr. Klein wants is 50.

NOW. Mr. Klein. can I go back to the Bush era when they were talking about lowering it to only 55 ... and check to see what you said about the so-called nuclear option!

I will tell you THIS. The progressive pundits where throwing a MAJOR fit and saying they would get revenge when they retook power.

Guess those arguments are not the same anymore.

Or are what you suggesting is lower to 51 for now, but raise it BACK to 60 real quick between Nov and jan if you ever see the Republicans regaining control.

Posted by: chromenhawk | August 1, 2009 8:27 PM | Report abuse

sure Conor Friedersdorf is misremembering a lot. The battle over partial personalization of social security took place in 2005, the peak of Bush's post Sept 11 popularity was in 2001. Bush's approval rating was much much lower in 2005 than it had been in say 2002 or 2003.
Also public opinion was against personal partialization

In the case of Reagan and the 80s the argument is absurd.

Reagan never had a majority in the House. The house never voted to eliminate the department of education. Caliming that Reagan was stopped by the filibuster is total nonsense.

Posted by: rjw88 | August 1, 2009 10:59 PM | Report abuse

Another Conor Friedersdorf misremembering -- Bush did not campagin on reinventing social security during the 2004 election. He never mentioned it. During the 2000 election he said he would never dip into the fund -- which was a lie. He borrowed large amounts from the fund during his presidency. After the 2004 election (and not during the campaign) he claimed there was not enough money to fund future benefits so he would have to "save" social security by privatizing it. Kind of like an arsonist playing hero by calling the fire department.

Posted by: patrick27 | August 2, 2009 4:03 PM | Report abuse

I said something like this in an earlier comment, but I'll say it again. The cloture requirements may have been weakened, but the filibuster has become much easier to use. This is largely because of the procedural filibuster. The reason it wasn't a threat during FDR's time was because a Senator had to stand up at the podium making himself look silly for days on end, and it was never sustainable.

Now the rules allow a Senator to say "I want to filibuster", but not actually have to engage in the parliamentary tactic. But the rules also allow Harry Reid to say "Sorry Mitch, but you've got to read from a phone book in Depends until you come to your senses"

The problem is that Harry Reid doesn't want to say this. But the power to nix the procedural filibuster is much more the Democratic Ace in the Hole than reconciliation is.

Posted by: zosima | August 4, 2009 12:41 PM | Report abuse

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