How Do You Kill the Filibuster?
I'm not sure whether the filibuster is actually unconstitutional. In any case, I don't think it's really the relevant question. The filibuster shouldn't be disqualified. It should be dismantled.
But what conditions would make that possible? I can primarily think of one: An enormously popular initiative with significant public support is being filibustered by a minority that's totally out of touch with public opinion. That doesn't seem very likely to me. Any initiative that popular wouldn't be filibustered.
The likelier outcome, I think, is that Congress will dismantle the filibuster when it realizes that the filibuster is making it less relevant. If you look back at the financial crisis, the lead response came from the Federal Reserve, because everyone understood that Congress couldn't move quickly enough. If you look at global warming, there's considerable pessimism that the Senate will be able to pass cap-and-trade, and many expect the Environmental Protection Agency to simply embark on its own campaign to regulate carbon emissions. If you look at health care, ideas like the Federal Health Board or the Independent Medicare Advisory Committee are an explicit effort to entrust the continual process of health-care reform to a more agile body than the Congress.
On issue after issue, the gridlock encouraged by the filibuster is not simply promoting inaction, but extra-congressional action. After all, the fact that Congress cannot solve problems does not mean the the problems don't need to be solved. And there are other avenues for action. The judicial system. The executive branch. The Federal Reserve. Ad hoc agencies meant to make the decisions Congress cannot. An angry Congress could block these changes. But the majority doesn't want to block these changes. They want action on these problems, even if they can't be the actors. So they permit these second-best outcomes that address the issues, but do so by shrinking Congress's authority.
That's not a very good situation, of course. It's less accountable, for one thing. And it's less efficient. Congress has all sorts of powers that the executive branch and outside agencies don't have. This makes for solutions of a very complicated and strange type. Regulating carbon through the EPA is much worse than pricing it through cap-and-trade. But imperfect solutions are better than no solutions. Eventually, however, I imagine Congress will want to get back into the solutions game, and won't like the fact that its authority has been systematically curtailed. And that will require restoring its capacity to act.
Photo credit: AP Photo/J. Scott Applewhite.
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