Misremembering the Filibuster
Conor 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 .
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