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The small-d democratic case against the filibuster

"Are progressives really willing to take their chances with a future GOP-controlled Senate empowered to pass whatever they have 51 votes for?" asks Scott Winship. "With the Supreme Court nominees who could be seated (to say nothing of other judgeships)? With the restrictions on abortion and LGBQT rights? With welfare reforms?"

Let me say this once, and slowly: Yeeeeeeesssssssss.

A system governed by the filibuster is a system in which you can't really do anything, but you can't undo anything, either. If the Democrats pass health-care reform, but an angry populace throws 12 Democratic senators and 35 Democratic congresspeople out of office, and then impeaches Barack Obama and replaces him with Haley Barbour, nothing will happen to health-care reform. At least, not if the remaining Democrats don't want anything to happen to health-care reform. That is, on some level, insane: A landslide election is not likely to result in anything close to a ratification of the public's will.

Of course, some prefer this, particularly when they imagine themselves inhabiting the minority. This is the general defense of the filibuster: It's annoying for Democrats now, but it was a godsend for them when George W. Bush attempted to privatize Social Security. But it wasn't. Social Security reform collapsed beneath its own weight. It never came up for a vote in committee, much less in Congress. The filibuster wasn't necessary and wasn't used. There's a lesson in that: Parliamentary obstructionism is not all that stands between the public and ruin. Bad bills frequently prove unpopular, and that is usually enough. Congress, after all, is not an institution notable for its bravery.

But if Social Security reform had been popular, and 41 Democrats had managed to block it by threatening a talk-a-thon, that would have been a bad outcome, too. Small-d democrats should prefer a system in which the majority can enact its agenda and then must defend it before the voters to a system in which the majority cannot enact its agenda and must explain the complicated mechanisms behind its fecklessness to the voters.

In a system without the filibuster, the threat of repeal, as opposed to the impossibility of action, becomes the dominant player in legislative design, and it's much to be preferred. The clear accountability of passing laws and being judged on their success is far superior to the confusing campaigns that result from promising the passage of laws and then failing to surmount a filibuster. Strengthening that crucial relationship between cause (one party got elected) and effect (they passed bills) is not only better from the perspective of assuring action on problems. It's also a road to a better-informed citizenry that knows who to blame, and who to reward, for the condition of the country and the performance of the most recent Congress.

By Ezra Klein  |  November 24, 2009; 8:30 AM ET
Categories:  Government , Senate  
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Comments

How about someone start a petition to eliminate the filibuster? Gather signatures from a few hundred thousand people?

Any credible outlet want to take that one up?

Posted by: JERiv | November 24, 2009 9:00 AM | Report abuse

It was Republicans who coined the "Nuclear Option" of killing the filibuster in hopes of passing grotesque and unconstitutional legislation as well as radical Supreme Court Justices under George W Bush. The Gang of 14, 7 Republicans and 7 Democrats in name only, joined forces to defeat any Democratic filibuster.

The 7 Republicans and DINOs do not support Democratic proposals before Congress now that Republicans have lost their majority.

Posted by: ddoiron1 | November 24, 2009 9:10 AM | Report abuse

I disagree. This idea of majority accountability might work if we had elections for President and Senate every two years, like the House, but I'm not willing to risk the ability to block the Republican crazy should they come back into power. A tremendous amount of scorched-earth damage could be done in a matter of four or six years -- just think of the courts, and a shiver runs down the spine.

That said, I believe the GOP may pull the nuclear trigger the next time they're driving the car. And that would make it easier for subsequent Democratic-controlled Congresses to do the same.

Again, the problems with passing meaningful healthcare reform have less to do with the filibuster and more to do with a breathtakingly passive strategy that ceded everything to Baucus and Grassley and Lincoln and Snowe and Lieberman, not to mention the insurance companies invited to closed-door meetings. For the life of me I can't imagine why these moderate Dems wouldn't vote for cloture and then vote against the bill.

Also, unlike you and Yglesias, I don't think that the administration is impotent here.I'd really, really, really, really like to read a post that analyzed what you think the administration has done wrong over the past months. So far you've only targeted Congress.

Posted by: scarlota | November 24, 2009 9:11 AM | Report abuse

It seems like the filibuster exists to maintain a political consensus until the generation -- or at least the coalition -- that formed it basically just dies off.

I have to say, I don't always agree with scarlota but I am curious about your analysis of the Obama Admin too. You really don't think they had any leverage here? I don't recall him even saying the word "filibuster" since he came into office, despite the Republicans flat-out abusing the process. They are even gumming up the functioning of the Executive Branch by holding up nominees. They are successfully derailing his legislative agenda. And they are steadily eroding the Democratic-independent coalition, NOT through any great ideological persuasion but rather through the simple appearance of weakness and incompetence.

If his Administration fails to achieve its goals, Barack Obama will take the blame. Not Joe Lieberman or Ben Nelson or even Jim DeMint. You would think he'd be a little more aggressive in AT LEAST trying to make sure he could staff up his agencies. But instead he's just been delivering platitudes about the importance of "the process."

Posted by: NS12345 | November 24, 2009 9:18 AM | Report abuse

Well I agree with you that in general the filibuster is a bad thing for democracy, I think you overstate your case by arguing that it can't be useful in certain situations. Cherrypicking an example where Democrats didn't need the filibuster to defeat a piece of bad legislation doesn't mean there couldn't be (and hasn't been) a circumstance where the filibuster would be the only standing between the country and terrible law. You're flat-out wrong to say that if George Bush had had 51 votes for his plan to privatize Social Security that the country would have been better off letting it pass than defeating it with a filibuster.

Posted by: apr2517 | November 24, 2009 9:43 AM | Report abuse

I think that the Democrats (and most of the Washington press corps) are suffering from something akin to battered spouse syndrome. Republicans had the power to do pretty much what they wanted for so long they are perceived to still be in control even after their real power was stripped from them.

I used to feel that the only check on their power was procedural tactics like the filibuster. Now, I tend to agree with Ezra.

The current situation of needing to have 60 votes to pass anything meaningful puts us firmly on the road to California-style ungovernable gridlock. Let's get back to majority rule, and if we don't like what the majority's doing, that's what elections are for.

Posted by: durangodave | November 24, 2009 9:45 AM | Report abuse

I'm so glad that progressive blogs have finally identified the filibuster as Public Enemy No. 1 in this country and really started to make the case for its elimination. Institutional reform is the best reform!

Posted by: WHSTCL | November 24, 2009 9:45 AM | Report abuse

We can all be thankful that our founding fathers rejected little-d democracy in favor of little-r republicanism to prevent the exact sort of ever-flailing collection of Mob-rule-generated laws described. While it's easy to point to Germany in the 1930s as an example of democracy in action, perhaps a better example is California in the 2000's: should a group of people, however large in number, be allowed to force reckless, life-affecting choices on others? If a majority of the population votes that those with green eyes should be killed, thereby saving taxpayer dollars, would a proper government follow the will of the people?

The filibuster and other mechanisms exist to prevent mob rule, to slow hot-headed reaction (even if well-intentioned), to give the floor to voices that otherwise might not be heard. Such mechanisms include, interestingly, the petition mechanism mentioned in a comment above: "I recollect a good many years ago that the Senator from Massachusetts who addressed the Senate this morning very pointedly described the right of petition as a very humble right - as the mere right to beg." The case against the petition and other similar constitutional checks against majoritarianism have all been made before: "But, sir, the right of petition, though but a poor right - the mere right to beg - may yet be carried to such an extent that we are bound to abate it as a nuisance. If the avenues to the Capitol were to be obstructed so that members would find themselves unable to reach the halls of legislation because hordes of beggars presented themselves in the way calling for relief, it would be a nuisance that would require to be abated, and Congress in self-defence would be compelled to remove them."

It's an alluring slippery slope. Without checks on mob rule -- filibuster, petitions, super-majorities, etc. -- we would all enjoy only that which a majority permitted, until such time as the non-majority takes up arms in opposition. In bankrupt California and Nazi Germany, non-majority action was too little too late.

Posted by: rmgregory | November 24, 2009 9:48 AM | Report abuse

"but I'm not willing to risk the ability to block the Republican crazy should they come back into power."

They are crazy because there's no accountability. Should they get elected in a system w/o the filibuster, they wouldn't last long trying to abolish SS, abortion, etc. The filibuster gives greater chance for the US to establish more Western European-style protections for the middle class (where there is majority rule), while instantly moderating the GOP.

Posted by: Chris_ | November 24, 2009 9:55 AM | Report abuse

The Senate isn't majority-rule in the first place. Every state has two senators, so Wyoming counts the same as New York. The over-representation of rural Western states insures that the Senate is always going to be more conservative than the overall population. I'm not sure how the filibuster plays into this. With a Republican majority, it could balance out the inherent conservative bias. But with a Democratic majority the filibuster gives already over-represented conservatives way too much power to obstruct.

Posted by: tl_houston | November 24, 2009 10:04 AM | Report abuse

"It's an alluring slippery slope. Without checks on mob rule -- filibuster, petitions, super-majorities, etc. -- we would all enjoy only that which a majority permitted,"

That's a little doomsdayish. Look at Great Britain. When responsibility for action is clear, voters can kick out a whole party -- rather than letting Obama shift blame onto Max Baucus, for instance.

Besides, Nazi Germany and CA (something I thought I wouldn't write today) have many causes, but one we can guess that not letting the populace have *more* power was not the cause. That's ridiculous.

I mean, just look at what the filibuster has been used for: preventing Civil Rights or social programs, usually by Sothern Conservatives. That's not a history I support.

Posted by: Chris_ | November 24, 2009 10:05 AM | Report abuse

I just think we need to get back to where using the filibuster came with serious repercussions. Take this whole filibustering whether to begin debate. Senate rules should be modified so that ANYONE who filibusters a vote to begin debate loses the opportunity to offer amendments after that. You filibuster at some later stage, you lose your opportunity to weigh in on the bill from that point forward.
The fact that Democrats are threatening to filibuster Democratic legislation is also a joke. The fact that Democrats are helping Republicans hold up Obama's staffing nominations is an even bigger joke.
The people doing it know damn well they will not suffer any repercussions whatsoever from Reid. Again, the caucus should be self policing. Someone like Ben Nelson should be seeing his pet issues fall further and further down the to do list with every veiled threat that comes out of his mouth. He should be seeing his office switched to a smaller and smaller room every single week just to let him know who is in charge. His staff should be shrunk.
If he switches, good riddance, and good luck with the teabaggers; I'm sure if they are calling teabaggers like Coburn and Graham RINO's, Nelson would win all sorts of popularity contests with them.

Posted by: flounder2 | November 24, 2009 10:14 AM | Report abuse

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?

Posted by: spotatl | November 24, 2009 10:16 AM | Report abuse

rmgregory: "Without checks on mob rule -- filibuster, petitions, super-majorities, etc. -- we would all enjoy only that which a majority permitted"

Two points. First, the opposite of "mob rule" is denial of the "will of the people." So those checks, while perhaps useful in some instances, have considerable drawbacks when a minority can block what a clear majority wants.

Second, our system does have checks on "mob rule" in requiring various types of majorities, which may not coincide, to agree before passing legislation: one needs a majority vote in the House, another one in the Senate, and then a president to sign off. The division of power in our system makes it hard to get things done, so I'm not particularly concerned about mob rule.

And if "mob rule" legislation gets passed, then it's our own fault. We need to take some responsibility for our government instead of blaming it on "the system." Democracy doesn't guarantee outcomes that I agree with. If I don't like the outcome, then I have to convince more of my fellow voters to start voting differently.

Posted by: dasimon | November 24, 2009 10:24 AM | Report abuse

spotatl:
YES. Yes he would. And any right-thinking progressive would too. How could he be any more clear about this?!

Posted by: WHSTCL | November 24, 2009 10:25 AM | Report abuse

WHSTCL- he only is supporting eliminating the filibuster now. He didn't support it when the republicans had control. I have never seen him say that he woudl support eliminating the filibuster 7 years into the future when he didn't know who was going to have control of the presidency or Senate. I think its easy for progressives to say that they want to see it eliminated now- I think its harder to say that they want to see it first eliminated in 7 years.

Posted by: spotatl | November 24, 2009 10:35 AM | Report abuse

apr2517: "You're flat-out wrong to say that if George Bush had had 51 votes for his plan to privatize Social Security that the country would have been better off letting it pass than defeating it with a filibuster."

I agree that the country would have been worse off. But democracy doesn't guarantee good or wise results. In the end, we should get the government we deserve.

There are lots of things I would like to see done differently in this country. But if I lose the vote, then I lose the vote. The problem isn't that 51 Senators might disagree with me; it's that a majority of their constituents disagree with me and elected those Senators. If my side can convince those constituents to start voting differently, then my side will eventually prevail. And that should be my responsibility as a responsible participant in the political process. But the 60-vote threshold lets minorities wield tremendous power without changing any more minds.

I don't want a minority blocking programs and policies I support when I'm in the majority. So I'd gladly give up the right to obstruct in order to gain the ability to actually govern with a majority. And when I'm in the minority, that means I have more work to do, not that I should take comfort that I can still obstruct.

A majority-rule Senate would force the majority to be accountable rather than blame obstructionists, and force the minority to assess its minority status rather than claim victory by obstructing.

Posted by: dasimon | November 24, 2009 10:35 AM | Report abuse

Anti-filibuster people all suffer from the same lack of understanding. They don't understand that what is vital in ANY regime is stability. The American system is stable because we are not constantly changing policies every election but rather there is a continuity to governance. I fear you anti-filibuster people have no regard for the value of stability in governance. Maybe you should study the history of other, less stable, regimes.

A political attack on the filibuster will end up being as politically unpopular as the Roosevelt court-packing plan that led to huge Republican victories in the 1938 election. The American people understand fair-play and they will punish those that appear to not want to work within the existing system.

Posted by: lancediverson | November 24, 2009 10:50 AM | Report abuse

I laugh at how this post is presented as a high-minded opinion piece on what's right for democracy, when we all know that Ezra would never be writing it if Democrats were filibustering the wishes of a Republican Senate majority.

Let's just continue to say what's necessary and be as intellectually dishonest as we need to be to advocate a bad health reform bill.

Posted by: FreeMas | November 24, 2009 10:57 AM | Report abuse

spotatl: Reading comprehension, man. He explicitly said he'd be fine if there was no filibuster back in the Bush years when the Republicans actually did control Congress beyond a shadow of a doubt, which is even more conclusive than him saying he'd be fine with there being no filibuster when he's not sure which party will control Congress.

I mean, how is this not blindingly obvious?

Posted by: WHSTCL | November 24, 2009 10:58 AM | Report abuse

WHSTCL, anyone can say that they would have supported eliminating the filibuster when Republicans had control. That's a no-consequence throwaway line. If you want to take that at face value, go right ahead.

Posted by: FreeMas | November 24, 2009 11:06 AM | Report abuse

Not only do I advocate ridding the Senate of the filibuster six years down the line, or 10, but I've said so many times on this blog. I think that's the only way you can do it.

Posted by: Ezra Klein | November 24, 2009 11:06 AM | Report abuse

The GOP already knows how to avoid the filibuster. It's called "reconciliation" and the GOP has never hesitated to use it when they can't get 60 votes. I believe reconciliation was used 11 times during the BushJr era.

Posted by: Lomillialor | November 24, 2009 11:15 AM | Report abuse

WHSTCL- he did support the filibuster when the republicans had control. Once again- I think its different to say that "I'm OK with the democrats being able to bypass the filibuster now even if the republicans can bypass it in the future" compared to saying "I'm fine with Barack Obama not being able to bypass the filibuster and Its likely in 7 years that there is a republican president but I still support eliminating the filibuster.

Posted by: spotatl | November 24, 2009 11:19 AM | Report abuse

"The American system is stable because we are not constantly changing policies every election but rather there is a continuity to governance."

I felt a Godwin's law example coming, but it never showed. Again, the filibuster isn't preventing the next Hitler from taking over the US. What it *has* done is prevent a lot of good from happening. Comparing that to more majoritarian democracies in Western Europe w/o the filibuster, I'd say we're worse off.

"Not only do I advocate ridding the Senate of the filibuster six years down the line, or 10, but I've said so many times on this blog. I think that's the only way you can do it."

Yes. I mean, I have conservative friends who think the show "V" is about how Obama is going to take over the world. If Obama got rid of the filibuster, all hell would break loose. There's too many crazies on the right for it to happen now, so hopefully the GOP will take care of it.

FreeMas, I'm not sure why you cannot believe someone is arguing in good faith. There were plenty of progressives who thought the filibuster should've been abolished under Bush (http://yglesias.typepad.com/matthew/2005/04/against_the_fil.html), and plenty who think so now, too. Ideas don't become bad or good depending on who is in power (unless you're the GOP and it's Medicare Part D versus 2009 HCR).


Posted by: Chris_ | November 24, 2009 11:24 AM | Report abuse

You're failing to contend with the Democrats' tendency to always view themselves as primarily the losers.

Posted by: pj_camp | November 24, 2009 11:41 AM | Report abuse

The invocations of mob rule and Weimar are a little hysterical. (That the original arguments against mob rule came from a group of bourgeois separatists is ironic, too.)

"I fear you anti-filibuster people have no regard for the value of stability in governance. Maybe you should study the history of other, less stable, regimes."

Maybe you should study the history of other, stable, regimes. The ability of the UK to cope with dramatic electoral shifts will amaze you. Likewise, you'll gasp at the fact that Canada and Australia have survived. Seriously, spare us that kind of waffle.

"perhaps a better example is California in the 2000's"

The structural problems in California are similar to those presented by the Senate in its post-Dole form -- let's point the finger appropriately here -- but embellished by the idiotic ballot initiative measure which gave the state Prop 13 and the two-thirds majority requirement for tax increases.

Posted by: pseudonymousinnc | November 24, 2009 11:48 AM | Report abuse

Absurd. The tyranny of the majority is always something to worry about. Why didn't Ezra make this argument 4 years ago? I'm sure he was silent then.

Posted by: truth5 | November 24, 2009 11:49 AM | Report abuse

I know Ezra has advocated elimination of the filibuster after some span of time so it's not of an immediate benefit to whoever's in power. I also know Matt Yglesias advocated for getting rid of the filibuster during the Bush years.

This is not hypocrisy or political jockeying. You can disagree with Ezra and Matt about whether the government would be better without the filibuster, but simply asserting that they have selfish ends isn't supported by their history and is a lazy way to approach their arguments.

As to the substance, I tend to agree with Ezra: there were some crazy judges that Republicans wanted to get appointed during the Bush years, but most of their major initiatives never got to the point where filibustering was an issue. Massive change, particularly to programs that already exist, will always be hard to pass whether we have a fillibuster or not. The filibuster doesn't ensure stability, it ensures inaction.

Posted by: MosBen | November 24, 2009 12:09 PM | Report abuse

Like I said- as long as Ezra is actually saying that it should be eliminated in the future when the party that controls things is unknown (or turned into the zell miller style rolling threshold) then thats exactly the solution I have been asking for for several years now. I respect Yglesias because even when the republicans were in control he was still against the filibuster. But of course for people who only now are changing their mind its nice to see them go on teh record as saying they support the elimination of the filibuster even if Barack Obama does not benefit from it.

Posted by: spotatl | November 24, 2009 12:23 PM | Report abuse

Oh....*NOW* you're against the filibuster...

Posted by: WrongfulDeath | November 24, 2009 12:25 PM | Report abuse

Even if bad bills are passed, like social security privatization, the public will quickly see --> firsthand firsthand <-- how false the Republican propaganda was, and how much better and more secure it made their lives, and then, like with Social Security and Medicare, the Republicans would never be able to get rid of it.

The filibuster severely hurts try and see, and so lets lies and misconceptions endure and severely hurt progress. The change over the last generation in Senate culture making the filibuster the norm instead of a rare occurrence is a big reason why we've fallen behind other countries in many important areas, like infrastructure, broadband, and much of education, science, and healthcare.

For more on this, please see my post, "A key reason why 51 Democratic senators and the V.P. should permanently eliminate the filibuster", at:

http://richardhserlin.blogspot.com/2009/08/key-reason-why-51-democratic-senators.html

Posted by: RichardHSerlin | November 24, 2009 1:53 PM | Report abuse

Even if bad bills are passed, like social security privatization, the public will quickly see --> firsthand firsthand <-- how false the Republican propaganda was, and how much better and more secure it made their lives, and then, like with Social Security and Medicare, the Republicans would never be able to get rid of it.

The filibuster severely hurts try and see, and so lets lies and misconceptions endure and severely hurt progress. The change over the last generation in Senate culture making the filibuster the norm instead of a rare occurrence is a big reason why we've fallen behind other countries in many important areas, like infrastructure, broadband, and much of education, science, and healthcare.

For more on this, please see my post, "A key reason why 51 Democratic senators and the V.P. should permanently eliminate the filibuster", at:

http://richardhserlin.blogspot.com/2009/08/key-reason-why-51-democratic-senators.html

Posted by: RichardHSerlin | November 24, 2009 2:01 PM | Report abuse

Even if bad bills are passed, like social security privatization, the public will quickly see firsthand how false the Republican lies were, and will quickly rescind, without the filibuster to block rescission.

However, for good bills, like universal healthcare, the public will quickly see firsthand how false the Republican propaganda was, and how much better and more secure it made their lives, and then, like with Social Security and Medicare, the Republicans would never be able to get rid of it.

The filibuster severely hurts try and see, and so lets lies and misconceptions endure and severely hurt progress. The change over the last generation in Senate culture making the filibuster the norm instead of a rare occurrence is a big reason why we've fallen behind other countries in many important areas, like infrastructure, broadband, and much of education, science, and healthcare.

For more on this, please see my post, "A key reason why 51 Democratic senators and the V.P. should permanently eliminate the filibuster", at:

http://richardhserlin.blogspot.com/2009/08/key-reason-why-51-democratic-senators.html

Posted by: RichardHSerlin | November 24, 2009 2:05 PM | Report abuse

Sorry about the multiple posts, the first two got weird because of an attempt to make arrows with two dashes and a greater than/less than sign. This seems to act as a command that affects text.

Posted by: RichardHSerlin | November 24, 2009 2:13 PM | Report abuse

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