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Let Congress be Congress again

In the filibuster thread this morning, commenter Spotatl asked, "If you really just dislike the filibuster overall and not just because the democrats currently have the majority you would support doing away with it in 7 years when no one has any idea who is going to be in control?"

Yes! Indeed, that's exactly the strategy I've suggested in the past. Make it 10 years, if you like. Anything else will be perceived, quite rightly, as a power grab, and whatever my opinion on the desirability of that power grab, it's impossible to imagine it happening. Breaking a filibuster, after all, requires 60 votes. Changing a Senate rule requires 67.

More to the point, it's important for Congress to begin thinking that way again. For the filibuster to end, Congress is going to have to rediscover its institutional voice. Democrats hate the filibuster when they're in power, and Republicans loathe it when they're in power, but it won't end until Congress decides it an enemy of Congress, rather than of whichever party happens to be in the majority at that moment.

People occasionally let slip that the filibuster is one of the checks and balances written into the Constitution. It isn't, of course. And its centrality to the process is a symptom of the failure of the checks and balances envisioned in our founding document. Congress was supposed to be stronger than the executive branch, and in competition with it. As such, it was considered very important, and very obvious, that Congress would work diligently to maximize its own power and authority. Congress would never permit some loophole to render it an ineffective branch, dependent entirely on rare supermajorities and presidential momentum to pass legislation.

But in recent years, American politics has become entirely about the president. Congressional elections are referendums on the president. Republicans lost in 2006 because Bush was unpopular, not because Harry Reid was beloved. Democrats understand that their fortunes are lashed to Obama's success, and Republicans have been clear that their return to power runs through his failure. Congress defines itself in relation to the president. That makes the filibuster very important to whichever party isn't in charge of the White House. It means the minority party has a continual stake in Congress not really working, because that means the president can't really succeed.

That's bad for the president, of course, but over time, it's also bad for Congress and bad for democracy. It means power devolves from the legislature and towards unelected, unaccountable organizations like the Federal Reserve, the EPA, the super MedPAC commission, or the courts. It means that the American people become frustrated with politics because the lever they think gets things done -- the presidency -- seems continually ineffective. It means that Congress falls out of practice at generating solutions to problems, and you develop the strange situation in which it appears to serve the president's agenda, as opposed to the president waiting for congressional action (people would find it peculiar, for instance, if Congress was carrying on with a serious health-care reform effort if Barack Obama was not also engaged in the subject).

The filibuster will end when Congress decides that it wants to be an effective, powerful institution again. But that's the only incentive Congress has to end it. So long as it's simply a question of partisan power, someone will always be in the minority, and so someone will always see the filibuster as serving their interests.

By Ezra Klein  |  November 24, 2009; 5:05 PM ET
Categories:  Congress , Senate  
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I would nominate you to serve on the Super MedPac death panel.

Posted by: RandomWalk1 | November 24, 2009 5:24 PM | Report abuse

Just kidding... good points raised on this post...

Posted by: RandomWalk1 | November 24, 2009 5:25 PM | Report abuse

Thank you, Ezra. I worked in Congress briefly in the early Eighties,and I confess I never really grasped this point. I guess the Reagan years were the beginning of the end for Congressional heft; they are certainly a hapless bunch today.

Posted by: ctnickel | November 24, 2009 5:29 PM | Report abuse

The sad problem is that the filibuster greatly supplements the power of a particular Senator, but reduces the power of the Senate as a whole. Kind of a quasi-"tragedy of the commons" problem.

Posted by: etdean1 | November 24, 2009 5:56 PM | Report abuse

Certainly, we don't know who will be in power in 10 years. But asking the Senate now to abolish the filibuster in ten years would still entail asking [just under] half of the Senate to admit that the tactic they are relying on--now and for the next decade, potentially--is damaging to the legislative process. Given that this admission would be necessary to pass the 10 year plan, why not just ask them to pass it now?

Posted by: bhulnickgmailcom | November 24, 2009 6:15 PM | Report abuse

How about a partial ban on filibusters? We already have at least two areas in which a filibuster is not available: reconciliation and the action on a base closing recommendation. Why not provide for the majority caucus each year to have the right to designate one proposal for up and down consideration, majority rule only.

Posted by: bharshaw | November 24, 2009 6:18 PM | Report abuse

How about a simpler change? Go back to the previous wording of Senators "present and voting" instead of "duly chosen and sworn", which would allow the minority to continue to filibuster but impose some costs on it: enough of them have to stay in the chamber to keep the majority under three-fifths.

Right now it's nearly cost-free for the minority to filibuster, as they only need one member in the chamber, and extremely expensive for the majority, as they need to keep enough members in the chamber to prevent the minority member from noting the absence of quorum.

This would allow highly-motivated minorities to continue to filibuster if they deem it necessary and are able to hold the line, but it would get rid of routine use of the filibuster, which is toxic to Congress as an institution.

Posted by: ivanski | November 24, 2009 6:25 PM | Report abuse

I generally agree with your position on the filibuster, but I don't think your conclusion necessarily follows:
"The filibuster will end when Congress decides that it wants to be an effective, powerful institution again."

Congress was effective and powerful for much of the 20th century, when it required 67 votes to break a filibuster. That history would tend to support the notion that he filibuster itself is not the true problem.

I think the true problem is that most modern members of Congress, particularly Senators, *prefer* being relatively ineffective and powerless. Over the past 40 years, they've found that gives them much more room to maneuver, politically and electorally. If you are in the majority and the president is a member of your party, you can help him wield power, rather swiftly, through those institutions you note above, the Fed, EPA, various commissions, and judicial appointments. Cf. GWB 2001-5. In fact, your party can enact its agenda much faster that way than through the normal legislative order. That will likely increase your chances of reelection.

But even if you're in the minority--or, even better, in the majority but with a president from the minority party--you can easily wage an assault on the president's agenda by relentless attacking those same institutions and *their* policies, with the freedom that comes from having conveniently farmed out *your* responsibility *to* those institutions. Scorch that earth effectively enough, and you can increase your numbers in the mid-terms and enhance your obstructionist agenda. Cf. Gingrich, Armey, Delay, et al.

The acquisition of (but not the ability to maintain) partisan power has become easier over the past 40 years. The number of tools available, from direct mail to talk radio to 24-7 cable to Instant Messaging, has increased exponentially. Most American politicians run simply to acquire power, not to wield it. That's baked into the system now, and the filibuster is not to blame.

Posted by: andrewlong | November 24, 2009 6:37 PM | Report abuse

Of course the filibuster is all progressives' fault:

Posted by: bmull | November 24, 2009 7:07 PM | Report abuse

@andrewlong, Congress was indeed effective and powerful when breaking a filibuster required 2/3 (technically, not 67) votes, but like I said in the previous comment, it was based off of "present and voting", not "duly chosen and sworn." That's a fundamental difference, and I'd argue one of the key drivers between routine filibusters: they've become routine because they're cheap. Make them expensive, and they won't be routine any more.

Posted by: ivanski | November 24, 2009 7:42 PM | Report abuse


Why oh why do you keep making it look like 67 votes are needed to end the filibuster?!

I'm sure at this point you have to have studied the nuclear option and seen that there's strong evidence it would only take 50 plus the VP.

For details, see my comments which are the last ones for this post of yours:

Posted by: RichardHSerlin | November 24, 2009 7:45 PM | Report abuse

There's good reason why the Democrats should support the end of the filibuster, even though they will someday be in the minority (although that may require a big change in the Republican party for the smarter, saner, and less cynical). Harmful policy (predominantly Republican) that gets through on 50 votes will tend to be quickly exposed as such, with trial and see, and will be relatively quickly rescinded or fixed, while excellent policy will be proven to be excellent, in spite of Republican lies, and will be permanent like Social Security, Medicare, and Unemployment Insurance.

For more on this, please see:

Posted by: RichardHSerlin | November 24, 2009 8:29 PM | Report abuse

The US should really just become a parliamentary regime. There, problem solved!

Posted by: kcrhun | November 25, 2009 2:09 AM | Report abuse

Good argument Ezra. I disagree, but you're more convincing than usual.

I don't want to make it easier for Congress to do big things. I like gridlock. If the Congress is doing nothing, they can't screw anything up.

Posted by: misterpeasea | November 25, 2009 2:41 AM | Report abuse

I agree that the nuclear option is a legal tactic that has actually been used before. BUt I think there are enough democrats who went on the record when the republicans were in power saying it would be unconstitutional that I think it would be very tough for them to go back down that road right now.

Posted by: spotatl | November 25, 2009 8:11 AM | Report abuse

""Right now it's nearly cost-free for the minority to filibuster""

That's true. The social consequences of the filibuster have also disappeared. The point of the filibuster was to burn some bridges and use up the goodwill of your colleagues in exchange for holding up something you thought was important. The filibustering senators had to decide whether a filibuster was worth the consequences.

What we've come to now is a time the benefits of using an assumed filibuster far exceed the tiny-to-non-existent costs. It's basically rules-arbitrage in the legislative realm.

Posted by: tyromania | November 25, 2009 8:54 AM | Report abuse

Am I mistaken, or is that a West Wing reference?

Posted by: MosBen | November 25, 2009 10:49 AM | Report abuse

misterpeasea writes:

"I don't want to make it easier for Congress to do big things. I like gridlock. If the Congress is doing nothing, they can't screw anything up."

But look, the world is changing a lot, science and technology is changing a lot. If we don't make big changes sometimes, then what we do becomes more and more sub-optimal, and we will fall behind other first world countries.

If the filibuster were used routinely like today, we still might not have Social Security, Federal Unemployment Insurance, and Medicare. I think the risk of living without those things far outweighs the risk of an occasional bad big bill passing. Such a bill will quickly be exposed as bad through trial and see, and then relatively quickly there will be irresistible pressure to rescind it or fix it, so it will not be like that for long.

Posted by: RichardHSerlin | November 25, 2009 10:57 AM | Report abuse

The filibuster will end when Congress decides that it wants to be an effective, powerful institution again.

if you think congress' power is predicated on passing laws, then you havent heard of the dormant commerce clause.

you are not concerned with the power of congress but with maximizing the power of majority, however thin, to pass "transformative" legislation without the hassle of obtaining a mandate.

Posted by: dummypants | November 25, 2009 11:06 AM | Report abuse

Doing away with it is not the answer.

Better to insist on a real 'Mr.Smith Goes to Washington' type of thing. If the point of a filibuster is debate, make senators actually speak during the duration - with no other business being transacted. The problem right now is that the party using it doesn't really pay a price.

Posted by: invention13 | November 25, 2009 11:41 AM | Report abuse

I think its important to recognize that the constitution was written to make massive bills like this exceptionally tough- the framers wanted more control left up to the states and the senate would only be for stuff with wide acceptance. I think this is a remnant of the federalist model. I think that the more liberal you are the easier you should want congress to be able to act.

Posted by: spotatl | November 25, 2009 11:45 AM | Report abuse

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